SECTION 7: STRATEGIES AND TOOLS - NATIONAL LEVEL

MODULE 21

DEVELOPMENT OF POLICY, PLANS AND LEGISLATION TO PROTECT AND PROMOTE ESC RIGHTS
USING MODULE 21 IN A TRAINING PROGRAM

The Purpose of Module 21

The purpose of this module is to suggest how activists can work towards the adoption of national policies, plans and legislation that protect, promote and fulfill the government’s obligations with respect to ESC rights.

The module

discusses the importance of activists’ being involved in policy and legislative formulation;
stresses the importance of mobilization of the poor as part of any policy or legislation strategy;
addresses the importance of national economic plans and national action plans to the protection of ESC rights;
discusses the integration of international human rights standards into national legislation; and
suggests some strategies that can be used to persuade governments to adopt "ESC rights-friendly” policies, plans and legislation.

Introduction

Involvement of civil society in the formulation, implementation and monitoring of social policy and legislation is an integral part of the functioning of a democratic society. When conditions are favorable for the involvement of civil society in governance, there is an increase in government accountability and this, in turn, contributes to increased protection of human rights. The link between enjoyment of ESC rights and the protection of other freedoms is well established.

No substantial famine has ever occurred in any independent country with a democratic form of government and a relatively free press. Famines have occurred in ancient kingdoms and contemporary authoritarian societies, primitive tribal communities and in modern technocratic dictatorships, in colonial economies run by imperialists from the north and in newly independent countries of the south run by despotic national leaders or by intolerant single parties. But they have never materialized in any country that is independent, that goes to elections regularly, that has opposition parties to voice criticisms and that permits newspapers to report freely and question the wisdom of government policies without censorship. [1]

Because of this integral connection between the enjoyment of democratic freedoms and the protection of ESC rights, it is imperative that those engaged in ESC rights activism consider intervention in policymaking and legislative reform as legitimate activities essential for advancing ESC rights. In places where no political space exists due to repression or restrictions on freedoms, it is important for ESC rights activists and those engaged in civil and political rights issues to forge a link to create the necessary conditions for the people to enjoy both sets of rights. It is also essential that civil and political rights organizations recognize that restrictions on freedoms or repression might also be mere symptoms of a highly unequal society suffering from deprivations and the conflict that ensues from that.

Activists should mount campaigns to encourage governments to ratify international human rights treaties. These international standards provide a framework for critically assessing various policies and programs pursued by the government. Ratification is a first step in the development of human rights-centered policies, since ratification represents a government’s commitment to respect, protect and promote the rights in the treaties.

Governments, however, do not come under the human rights regime only when they ratify the relevant treaties. Even while campaigning for ratification of relevant treaties, activists should use internationally accepted standards to critically assess the policies and practices of their respective governments. They should campaign for the enactment of laws and formulation of policies that adhere to international human rights standards irrespective of whether their government is party to the relevant human rights treaties.

Developing National Policy from Local Issues and Local Struggles

Ghad is a strip of land in the Saharanpur district in Uttar Pradesh State, India. The area is rocky and agriculture is difficult. Over 40,000 families of Ghad survive by making rope called baan from a local grass that grows abundantly in the surrounding forests. Over the years, their access to this natural resource has been increasingly restricted due to government policy. Before independence, the British had taken control of all forest lands and imposed restrictions on entry into forests. However, the local people were given concessions to collect the grass. After independence, the government created a Forest Corporation, which became the agency for collecting and selling the grass. Local people's concessions were terminated. As a result of middlemen from whom the villagers had to buy the grass, the price of grass increased considerably. On the other hand, the paper industry was getting grass at a much lower price.

An NGO, Vikalp, began to organize the local people and help them buy grass in bulk directly from the Forest Corporation. Subsequently, local people formed their own organization to demand their right to collect and use forest resources. They demanded that forest be considered a common property resource of the people living in the area, who were capable of protecting the forests, unlike the government officials who succumbed to pressure from commercial interests.

The struggle for control and access to common property was articulated as a policy issue when the government was formulating its new forest policy. Along with Vikalp and other NGOs concerned with the issue, the local people were able to influence the new forest policy formulated in 1986. This policy incorporated many of the demands that emerged from struggles in Ghad and other places.

Intervention in policy formulation and legislative reform should be seen as part of the process of mobilizing those who are deprived of their human rights. Such interventions are an important means of building people’s confidence. At the same time, the mobilization of people is an integral element in the process of influencing the formulation of policies and laws.

National Economic/Action Plans and ESC Rights

A government’s policies and plans in the ESC spheres are essential embodiments of its priorities and commitments. Among those commitments, of course, are its ESC rights obligations. Furthermore, a country’s national action or economic plans usually impact the full range of economic and social issues in a society. They are thus critical tools for the implementation and monitoring of human rights obligations. They are particularly significant in relation to

clarifying the precise nature of the state's obligations, and
developing concrete standards (or benchmarks) for measuring a government’s compliance with its obligations (see Module 19).

Both are essential as a basis for holding a government accountable for its obligations and developing improved mechanisms for the enforcement and monitoring of ESC rights.

In addition to standard national economic plans, the declarations and program of action adopted by the UN World Conference on Human Rights (1993), Fourth World Conference on Women (1995) and World Summit on Social Development (1995) also recommended that governments develop national action plans (NAPs) as part of their commitment to ensuring human rights, gender justice and social development. NGOs and other civil society actors can contribute to development of national economic plans and the national action plans called for by these UN conferences as a strategy for ensuring the enjoyment of ESC rights. They can attempt to influence the content of national economic plans and NAPs with the following aims:

ensuring that the country’s plans accurately reflect what has been done to promote and what barriers still exist to prevent full and equal access to ESC rights in the country;
persuading the government to set clear goals in its plans for the full realization of ESC rights, combined with appropriate indicators, benchmarks and time frames that can be used to measure progress towards the achievement of the goals;
identifying vulnerable and disadvantaged groups that require special assistance from the state to gain access to ESC rights (e.g., persons living with HIV/AIDS, rural women, migrant workers, persons with disabilities, impoverished children, elderly and indigenous people);
identifying mechanisms through which disadvantaged groups can gain access to ESC rights as well as access to remedies for redress;
identifying the main policy, legislative and institutional measures needed to achieve the goals that have been set in the plans; and/or
persuading the government to allocate adequate resources (financial, human, technical, etc.) for the full realization of ESC rights.

National Action Plans
Experience from South Africa

South Africa was faced with the challenge of translating the ESC rights provisions included in its Constitution into national plans designed to further those rights. One of the areas addressed has been water: The right of access to sufficient water is enshrined in section 27 of the Constitution. To this end, the Department of Water Affairs introduced legislation that recognizes and provides a more detailed definition of the constitutional right to water. The Water Services Act (1997) defines the right of access to a basic water supply as "the prescribed minimum standard of water supply services necessary for the reliable supply of sufficient quantity and quality of water to households, including informal households, to support life and personal hygiene." This definition is further elaborated on in policy documents, which identify the following six elements of a basic water supply: quantity, cartage, availability, assurance of supply, quality and upgradability. (A definition is also provided for basic sanitation.)

As detailed in Module 19, the department quantified the minimum level of water supply at 25 liters per person per day. It also agreed that the water must be available within 200 meters of the dwelling, the flow rate from the outlet should not be less than 10 liters per minute and the water supply should provide water security for the community. This means that "raw water" should be available for 98 percent of the time, and the operation and maintenance of the system should be effective. Finally, a guide was developed in conjunction with the Department of Health containing minimum health standards for the assessment of the quality of water supplies.

The Department of Water Affairs set itself a medium-term target of supplying 50-60 liters of water per person per day (based on WHO guidelines), and a long-term target of full services and house connections for all. In addition, the new water legislation provides a framework for the equitable and sustainable use, management and conservation of water resources. The minister must establish a national water resource strategy after consultation with the society at large, and local authorities are obliged to adopt a Water Services Development Plan for the progressive implementation and improvement of the delivery of water services over a five-year period.

This case study demonstrates how national plans (along with benchmarks) can be used to give substance and effect to ESC rights. Through illuminating their core content and establishing concrete benchmarks for evaluating progress towards their full realization, these plans can propel ESC rights from the margins to the human rights mainstream.

National economic or action plans can be used as a public tool for evaluating the government’s commitment to ESC rights and its performance in terms of relevant international treaties protecting ESC rights.

They can be used to monitor the progress made by government towards the full realization of ESC rights. The more detailed the indicators, benchmarks and time frames provided in the plans, the easier it will be to monitor government’s progress. They can also assist in identifying the main problems and obstacles that prevent or delay the achievement of relevant benchmarks and goals.

The plans can be used as a tool for holding the government accountable for the achievement of the goals it sets in relation to ESC rights. For example, when the government acts contrary to its commitments under its plans, this fact can be highlighted in the media and public pressure brought to bear on the government to honor its commitments. In addition, NAPs adopted pursuant to the Vienna Declaration (on human rights) are lodged with the United Nations and represent an international commitment. Consequently, it may also be possible to bring international pressure to bear on a government when it is guilty of a serious violation of its human rights commitments under the NAP.

Plans can also be adopted for specific groups-for example, for women and children.

National economic and action plans have their limitations, of course. A principal one is that they are often primarily developed by government officials and may amount to a government setting the standards against which it is to be monitored and held accountable. This is especially the case if the plan is not developed as part of a wide-ranging and well-publicized consultative process. If it is primarily seen as a technical document reflecting established government policy, there will be little motivation on the part of organizations and communities to use the plan as a tool for monitoring and advocacy. Its validity as a mechanism for holding governments accountable for ESC rights will accordingly be diminished.

Integration of ESC Rights into Legislation

Article 2(1) of the ICESCR details the state’s obligation "to take steps . . . with a view to achieving progressively the full realization of [ESC rights] . . . by all appropriate means, including particularly the adoption of legislative measures.” In its General Comment 3, the CESCR states that such legislation "is highly desirable and in some cases may even be indispensable” to the realization of these rights.

A legislative framework is needed:

to provide a more precise, detailed definition of the scope and content of various ESC rights encountered in international instruments and national constitutions. For example, legislation is required for elaborating on the "right to adequate housing” protected in article 11 of the ICESCR;
to prescribe the exact responsibilities and functions of different spheres of government at the national, provincial and local level in giving effect to the particular right;
to create a coherent and coordinated institutional framework for the delivery of the right;
to prevent and prohibit actions by public officials and private parties (e.g., landlords, employers, corporations, etc.) that curtail the enjoyment of ESC rights; and
to ensure provision of specific remedies to redress violations of a right.

Integrating International Human Rights Standards into National Legislation
Excerpts from South Africa Rental Housing Bill (B 29B-99)

BILL

To define the responsibility of Government in respect of rental housing property; to create mechanisms to promote the provision of rental housing property; to promote access to adequate housing through creating mechanisms to ensure the proper functioning of the rental housing market; to make provisions for the establishment of Rental Housing Tribunals; to define the functions, powers and duties of such Tribunals; to lay down general principles governing conflict resolution in the rental housing sector; to provide for the facilitation of sound relations between tenants and landlords and for this purpose to lay down general requirements relating to leases; to repeal the Rent Control Act, 1976; and to provide for matters connected therewith.

PREAMBLE

WHEREAS in terms of section 26 of the Constitution of the Republic of South Africa, 1996 everyone has the right to have access to adequate housing;

AND WHEREAS the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right;

AND WHEREAS no one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances;

AND WHEREAS no legislation may permit arbitrary evictions;

AND WHEREAS rental housing is a key component of the housing sector;

AND WHEREAS there is a need to promote the provision of rental housing;

AND WHEREAS there is a need to balance the rights of tenants and landlords and to create mechanisms to protect both tenants and landlords against unfair practices and exploitation;
AND WHEREAS there is a need to introduce mechanisms through which conflicts between tenants and landlords can be resolved speedily at minimum cost to the parties;

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:

TABLE OF CONTENTS

CHAPTER 1

INTRODUCTORY PROVISIONS
1. Definitions

CHAPTER 2

PROMOTION OF RENTAL HOUSING PROPERTY
2. Responsibility of Government to promote rental property
3. Measures to increase provision of rental housing property

CHAPTER 3

RELATIONS BETWEEN TENANTS AND LANDLORDS
4. General provisions
5. Provisions pertaining to leases

CHAPTER 4

RENTAL HOUSING TRIBUNAL
6. Application of Chapter
7. Establishment of Rental Housing Tribunals
8. Functions of Tribunal
9. Composition of Tribunal
10. Meetings of Tribunal
11. Staff
12. Funding of and reporting on activities of Tribunal
13. Complaints
14. Information Offices
15. Regulations

CHAPTER 5

GENERAL PROVISIONS
16. Offences and penalties
17. Review
18. Repeal and amendment of laws
19. Savings
20. Short title and commencement . . .

CHAPTER 2
PROMOTION OF RENTAL HOUSING PROPERTY

Responsibility of Government to promote rental housing

2. (1) Government must-
(a) promote a stable and growing market that progressively meets the latent demand for affordable rental housing among persons historically disadvantaged by unfair discrimination and poor persons, by the introduction of incentives, mechanisms and other measures that-
(i) improve conditions in the housing rental market;
(ii) encourage investment in urban and rural areas that are in need of revitalisation and resuscitation; and
(iii) correct distorted patterns of residential settlement by initiating, promoting and facilitating new development in or the redevelopment of affected areas;
(b) facilitate the provision of rental housing in partnership with the private sector . . .
(3) National Government must introduce a policy framework, including norms and standards, on rental housing to give effect to subsection (1).
(4) Provincial and local governments must pursue the objects of subsection (1) within the national policy framework on rental housing referred to in subsection (3), and within the context of broader national housing policy in a balanced and equitable manner and must accord rental housing particular attention in the execution of functions, the exercise of powers and the performance of duties and responsibilities in relation to housing development . . .

CHAPTER 4
RENTAL HOUSING TRIBUNAL
. . . . . . . . . . . . . . . .

Composition of Tribunal

9. (1) The Tribunal consists of not less than three and not more than five members, and must comprise-
(a) a chairperson
(b) not less than two and not more than four members who must be appointed by the MEC [member of the Executive Committee of a province] in equal number, of whom-
(i) not more than two members must be persons with expertise in property management; and
(ii) not more than two members must be persons with expertise in consumer matters; . . .

Complaints

13. (1) Any tenant or landlord or group of tenants or landlords or interest group may in the prescribed manner lodge a complaint with the Tribunal concerning an unfair practice . . . .

CHAPTER 5
GENERAL PROVISIONS
. . . . . . . . . . . . . . .
Review

17. Without prejudice to the constitutional right of any person to gain access to a court of law, the proceedings of a Tribunal may be brought under review before the High Court within its area of jurisdiction . . .

Strategies to Persuade Governments to Adopt "ESC Rights-Friendly” Policies and Legislation

The particular strategies that should be adopted by NGOs to persuade governments to adopt policies and legislation to promote ESC rights depend to a large extent on the national context and the issues at stake. Sometimes policymakers can be persuaded to develop or reform national plans and/or legislation by a well-researched submission that draws attention to the policy implications of international or constitutional standards on ESC rights. In another context, grassroots mobilization and a well-publicized campaign may be more effective. Some possible strategies are:

participating in consultative forums in relation to key policy and legislative processes (e.g., budget review forums, law commissions);
making representations to government departments that are developing policy in areas critical to ESC rights;
making submissions in public hearings convened by government and legislative bodies;
lobbying of public officials responsible for the adoption and implementation of legislation (e.g., members of parliament, local government officials);
working for awareness-raising and mobilization of the public and affected communities through campaigns, media work, etc.;
participating in ESC rights advocacy and joint actions across a broad spectrum of organizations in civil society; and
using international standards and where possible national standards for ensuring effective legislation and the allocation of adequate budgetary resources to give effect to rights. For example, based on the ESC rights provisions in their constitution, the South African groups have lobbied and conducted campaigns on social expenditure and legislation.

It is vital that NGOs working in the field of ESC rights lobby for transparent and participatory processes in relation to policymaking and the adoption of legislation. This includes, for example: access to information, fair administrative procedures, consultative procedures for budget and policy development at all levels of government, and a system of public submissions and hearings in the legislative process. These are vital to ensuring that ESC rights are fully integrated into policy and legislation.

The Assembly of the Poor and the Power of the People

The negative effects of over four decades of economic and industrial development led to the coming together of disadvantaged groups in one of the most powerful people's movements in the history of Thailand. On 10 December 1995, representatives of people affected by dam projects, land and forest conflicts and government infrastructure projects as well as representatives of urban poor and victimized and exploited industrial workers, met to chalk out a strategy for dealing with their problems. They were joined by students, NGOs and representatives of people with similar problems in other Asian countries. On 14 December 1995, in a village established in a protest against the Pak Mool Dam (see Module 15), a declaration was adopted creating a network called "Assembly of the Poor," which would provide mutual support to the various member networks and strengthen their bargaining power. The next day, thousands of people submitted an open letter to the Thai prime minister on the occasion of a meeting of the heads of governments in the Southeast Asian region. This attracted domestic and international media attention. The Thai government ignored this and subsequent demonstrations by the Assembly of the Poor.

On 25 March 1996 more than 10,000 people from twenty-one provinces assembled in front of Government House in Bangkok; they established a "Village of the Poor" in the heart of the city. The government opened negotiations with representatives of the Assembly, but no progress was made. After on hundred days, the Assembly decided to disperse and reconvene again with a bigger rally. On 25 January 1997, the Village of the Poor was reestablished with participation from an even larger number of people. Nearly 20,000 people filled up a more than one kilometer stretch near the Government House in Bangkok.

The Assembly was a nonviolent, creative expression of protest by people who had long been ignored. It was a model of organization, with different committees taking responsibility for ensuring the smooth stay of nearly 20,000 people. The long effort of the Assembly achieved success with the newly elected government, which announced its willingness to negotiate. After ninety-nine days, the government agreed to the following, among others:

• forest-based communities will be involved in the drafting of the new community Forest Bill;
• cancellation of identified government projects that have caused problems for the livelihood of the local people;
• compensation for villagers who lost their land and livelihood from the construction of seven dams;
• prior to implementing all major projects, a study will be conducted on the social and environmental impact of such projects;
• participation of small farmers in the drafting of the country's Economic and Social Development Plan;
• promulgation of a new Slum Act, which will be drafted with the participation of representatives of urban poor groups;
• establishment of an institute for examining and developing policies for ensuring the safety and health of workers.

Twelve committees were established to monitor the implementation of these and other aspects of the agreement.

Author: The author of this module is Sandra Liebenberg. The research on which this module is based was conducted with the financial assistance of the European Union Foundation for Human Rights in South Africa (EUFHRSA). The views expressed here do not necessarily represent the official view of the EUFHRSA. The EUFHRSA is funded by the European Union under the European Programme for Reconstruction and Development.

USING MODULE 21 IN A TRAINING PROGRAM

NOTE

1. Amartya Sen, Development as Freedom (UK: Oxford University Press, 1999), 152.