Free Prior and Informed Consent for Indigenous Communities

The LRC’s regional project focuses on the protection of community rights to resources and, in particular, aims to find ways in which to improve the imbalance of power between rural communities in Africa and those interested in their resources; be they government or potential investors.

The imbalance of power is not only a function of the gross inequality of financial resources between these parties, but exacerbated by the fact that the resource rights of rural communities on the African continent continue to be unrecognised within the formal legal systems of their countries. Ironically, while the British Privy Council’s pronouncements in 1919 in In re Southern Rhodesia that, “some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society”, seem outrageous in a world that now accepts equality as a fundamental right, African governments and investors continue to regard customary tenure as inferior to titled ownership and treat it with the associated indifference. The result is the displacement and resource dispossession of millions of people across the continent as the demand for Africa’s land and resources increase.

Our advocacy for the proper recognition of customary law as a source of community rights and resources aims not only to establish community ownership, and the protections that that will entail, but also to promote the principle of free, prior and informed consent. This principle has been established in international law as a right of indigenous groups. But rural communities consulting with potential investors can only have actual bargaining power if they have the right to say “no”. We argue that this principle is one found in customary legal systems and, as such, should be applied to all customary communities.

The nature of customary law also provides the basis for our understanding of compensation and reparation. In cases where communities are compensated after removals, the measurement of their loss is generally reduced to the hectares of grazing land and the square metres of their houses. However, if the nature of customary communities is to be understood and recognised, reparation will have to take into account the loss of community, custom and culture. We are actively engaging with the African Commission on Human and Peoples’ Rights and, in particular, its Working Group on Extractive Industries, Environment and Human Rights Violations. Notably, we successfully lobbied for the Commission to adopt a resolution on the situation of extractive industries in Africa, which acknowledges the problem of the non-recognition of customary tenure and the right to free, prior and informed consent. To read more about the Working Group, please visit the website.

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Restoring power or the dignity of rural people?

The LRC’s Constitutional Litigation Unit attorney, Wilmien Wilcomb, recently published an article in Business Day on the Traditional Courts Bill, entitled, “Restoring power or the dignity of rural people?” In it, she states that:

“Opposition to the bill is largely based on the fact that it does not reflect living customary law and its participatory and accountable essence. Instead, just as it entrenches apartheid boundaries and ethnicities, it also entrenches distorted versions of apartheid-era traditional courts. It is colonialism’s tribal boundaries and versions of traditional courts that are reflected in the bill, as has been pointed out by rural communities.”
Read the article here.

 

Family Responsibility in the Workplace

Time tax and reasonable accommodation when caring for the elderly, disabled and children

For many employees, their duties as parents or caregivers of children, dependents, the elderly or sick family members sometimes conflict with the rigid requirements of their workplace. In light of the HIV/Aids crisis, the burden that caring for sick family members place on the employed or employable members of society cannot be ignored (1). This burden is high for carers of families suffering from opportunistic infections related to HIV/Aids, as well as for family members caring for those with intellectual and psycho-social disabilities.

The care for a child with a disability, or of an elderly family member, by necessity places a “time tax” on the carer.  In South Africa and globally, population aging refers to the process by which the older population (60 years and older) become a proportionally larger component of the total population (2). This means that the burden of care on the elderly, to support the household that they head, is at an all-time high. At the same time, caring for an elderly family member that is frail also has consequences for the time on the carer, most often a female member of the family. Joubert and Bradshaw (2) estimate that the period 1985 to 2025 will signal a decline in the youth dependency ratio of 70%, whilst the older age dependency ratio will increase by 45% between 2000 and 2025. South Africa’s dual epidemiological profile of both infectious and chronic disease, and our burden of injuries, they argue, means that the disability burden is both diverse and extensive.

The incidence of disability and impairment will increase with age and the number of disabled persons is expected to increase as a correlate of absolute population growth (3). The dependency on younger, female members of the family, usually economically-critical age groups (between 16 and 64), therefore, becomes heightened. Until recently, South African courts have not grappled with the vexed issue of reasonable accommodation for family responsibility in the work place. The case of Hugo v eThekwini Municipality, however, is providing some food for thought on how female workers balance both the demands of work and family commitments when caring for a child with special needs.

Gendered Role Division = Unpaid work

Traditionally, caring for the young, elderly and sick has been women’s work, based on assumptions made about the roles and responsibilities of women and girls. This gendered division of labour includes a whole set of tasks, such as feeding and bathing the ill, providing counselling and emotional support, and household maintenance; including cooking, cleaning, washing and so on. For women, the “time tax” involved in caring for a sick family member means that the carer misses out on social, educational and professional opportunities.

The time spent on caring and related activities provides a subsidy to the economy, meaning that a transfer from the household/family is made to the market (4)(5)(6). Unpaid work of this nature, measured as estimates of the share of market production, can account for 30 to 60% of gross domestic product (7). According to Taylor et al (4), women’s “unremunerated work” (family responsibility) is “typically invisible to policy-makers and unaccounted for in traditional policy and economic models; the connections between unpaid care, gender and poverty in the context of the HIV and AIDS pandemic has yet to receive adequate policy attention.” Policy interventions should, therefore, be “designed with the gender asymmetries of unpaid work in mind,” which would address some of the social and economic burden of HIV and AIDS.

However, this burden is not only felt within the context of the HIV/Aids epidemic.  Female workers’ caring roles are burdensome whether it is a sickly child, frail elder or child with special needs. Primary care givers of a child with a disability require more time off work and are more likely to work reduced hours and to decline overtime (8)(9).

The Ideal Worker

In the average workplace, the rigidity of workplace policies and practices is based on the premise of the ‘ideal worker’ norm.  This norm has been explained as basing workplace policies and practices on the stereotypical male employee ‘who is available to work long hours unencumbered by the unpredictable and time-consuming demands of family caring requirements’ (10). This ‘ideal worker’ norm could be strictly applied to the duration of working hours or geographical location of the workplace. It would mean that an employee could be expected to work long hours or night shifts or at a workplace location that conflicts with the demands of caring for a family member.

Such practices and policies then translate into conflicting demands for female workers, who have to meet the demands of the household, parenthood and work.  Yet, with the changing nature of gender roles with regard to parenting and caring, this could be equally true for both male and female employees. That being said, caring demands for children and families most often fall on women and this means that the burden is unequally shared in favour in men.

Reasonable Accommodation of caring responsibilities

A parent or caregiver may require an employer to reasonably accommodate the particular caring needs that rests on their shoulders.  This may be a once-off instance where a child has suddenly fallen ill and the parent may need flexible hours to visit the child at hospital for a short period of time. It may also be a longer term accommodation, where the employer will consult with the employee to alter existing working arrangements, such as a change of shifts from night to day, in instances when the family responsibility of the employee is such that it is warranted. Requests for flexibility, however, can be perceived as an employee not being able to perform the job, or, rather than being entitled to equal treatment, that the employee is seeking advantage over others (11)(12). Cohen and Dancaster (13) argue that these gender assumptions fail to acknowledge that a female employee’s decision to work is a necessity borne out of economic circumstances and that flexible working hours or conditions would benefit all employees that are carers. Such accommodations would ensure that employees remain in employment. Yet, such requests are denied because it is seen as deviating from the ‘ideal worker norm’.

Unfortunately, family responsibility litigation has been a “non-starter” in South Africa (13). Until now, there has been limited legal attention given to family responsibility in South Africa, despite our labour and equality laws requiring reasonable accommodation of employees with particular family responsibilities.

Hugo v eThekwini Municipality

In January 2011, Captain Suraya Hugo, a metro policewoman, represented by the Legal Resources Centre, challenged the actions of her employer, the eThekwini Municipality’s Metropolitan Police, in the Labour Court in Durban, for repeated unilateral, unreasonable and unlawful transfers over a period of one year, resulting in prejudice to the well-being of her minor son.  Captain Hugo is a single mother of a five-year-old child with autism.  Her son cannot cope with change and requires a reasonably stable routine.  Sudden transfers to other offices, and unexpected and frequent changes in shifts, adversely affected the emotional and physical well-being of her child. Despite her requests that her family responsibility to her son required reasonable accommodation, the transfers continued without further consultation with her and failed to reasonably accommodate the special needs of her and her child.

From: weheartit

Captain Hugo alleged that her employer unfairly discriminated against her in terms of section 6(1) of the Employment Equity Act 55 of 1998, on the basis of both her gender and family responsibility. In terms of this Act, family responsibility is defined as the “responsibilities of employees in relation to their spouse or partner, their dependent children, or other members of their immediate family who need their care or support.”  Reasonable accommodation is defined as “any reasonable modification or adjustment to a job or to the working environment that will enable a member of a designated group to have access to, or participate or advance in, employment.”

This means that her employer was obliged to consult with her prior to taking any decision to transfer her, in order to assess and reasonably accommodate her and her child’s special needs. The employer is also expected to take a decision that reasonably accommodates the special needs of her and her son and that would not unfairly discriminate against her on the grounds of gender and family responsibility. The employer simply refused to do so and instead, when challenged in the Labour Court, averred that “…it is the employer’s prerogative as to the most efficient manner of deploying its human resources.  It is not for the employee to dictate to the employer where the employee wishes to perform the services that are the subject of the contract of employment.”

An expert psychologist reported that Captain Hugo’s child becomes highly distressed and experienced “meltdowns” that take the form of self-injurious behaviour. This behaviour would be ameliorated by Captain Hugo’s proximity to the child’s special school.  She also reported that it was in the best interests of the child that Captain Hugo work according to a regular shift system, consisting of day shifts, which will enable her to provide the necessary care for the child.  In conclusion, she reported that it is adverse to the child’s best interests that his mother is transferred frequently or in circumstances that fail to take into account the impact of any disruptions to his condition.

A settlement was agreed to shortly after Captain Hugo closed her evidence in court.  This settlement agreement was made an order of court. It provided that, in order reasonably to accommodate the family responsibility of Captain Hugo, the employer shall transfer her to a post at a particular station, for a fixed day shift from 7am to 16h00, Mondays to Fridays, as this station was close to the child’s school.  The employer was ordered to pay the costs of the court proceedings.

Captain Hugo’s son has since adjusted well to his and his mother’s stable work routine.  For him, this was a victory, even if he does not understand that his mother had to challenge her employer to accommodate his and her needs for his care.  It does not, however, set a precedent for mothers in her situation and this victory would only be persuasive to another litigant in similar circumstances. The individualistic nature of remedies, in such instances, means that each employee that wishes to challenge the discriminatory conduct of their employer would have to attempt costly litigation, unless a consultative approach with the employer is successful.

Law and Policy imperatives to reasonably accommodate family responsibility

For many female employees in South Africa, balancing the demands of work and caring remains a difficult task. In terms of Section 27 of the Basic Conditions of Employment Act 75 of 1997, employees are entitled to family responsibility leave (three days leave after four months of employment, provided the employee works for more than four days a week). This leave is taken in the event of the birth of the employee’s child (parental leave), death of an immediate family member, or sickness of the employee’s child. This ‘special leave’ category is generally the only extent to which the average employer will accommodate their employees’ family responsibility in the work place.  Yet, our labour laws and employment equity laws provide much more scope for reasonable accommodation.  For example:

  • Section 7(d) of the Basic Conditions of Employment Act requires every employer to regulate the working time of each employee with due regard to the family responsibilities of employees.
  • The Code of Good Practice on the Integration of Employment Equity into Human Resource Policies and Practices 2005 requires employers to endeavour to provide “an accessible, supportive and flexible environment for employees with family responsibilities” including “considering flexible working hours and granting sufficient family responsibility leave for both parents”.
  • The Code of Good Practice on the Arrangement of Working Time 1998 states that the design of shift rosters must be sensitive to the impact of these rosters on the employees and their families and should take into consideration the childcare needs of employees.  Such arrangements could include accommodating pregnant and breast-feeding workers and those with family responsibilities.

Worker-carers can, and should, request reasonable accommodations when their family responsibility requires it. But for most employers, similar to the argument the employer advanced in the Hugo matter, managerial prerogative means that employers are entitled to determine the operational needs of the business, with the working hours, shift times and workplace policies usually left to the unfettered discretion of the employee (13).  This would depend on the circumstances of the case, but it would be up to the employee to advance flexibility in the face of reticence from employers who may not want to create a precedent for other workers. This flawed argument again is based on the ‘ideal worker’ norm which anticipates that all workers have the same needs and that an accommodation of one would mean that the same accommodation would have to be made available to others. The individualistic nature of family responsibility would not create such an expectation.

Conclusion

The savings that are associated with a happier workforce, particularly where work/life balance is promoted, includes reduced attrition and absenteeism and increased productivity and loyalty.  This far outweighs the increased administration costs required to facilitate this flexibility and employer’s assumptions about perceived unfeasibility of such accommodations (14). Employers must be sensitised to the importance of reasonable accommodation of the needs of employees with caring responsibilities through the provision of flexible work practices (15).

Realistic solutions to the problem of time and place within a creative, practical and flexible framework can meet the requirements of both the employee towards their family responsibility and that of the employer with regard to efficient operations and loyal employees.  As the caring burden for workers increases, policy and workplace practices must create flexibility to accommodate the family caring needs of the workforce, lest the time tax involved becomes crippling. This should be done not just for the economic survival of the affected household but also to ensure gender equity in the workplace, creating a more efficient and effective work environment.

By: Willene Holness

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.

  1. UNESCO (2010) The Implications of HIV/Aids on Women’s Unpaid Labour Burden. Accessed at www.unesco.org.
  2. Joubert and Bradshaw (2006) “Population Aging and Health Challenges in South Africa”. In Steyn, Fourie and Temple (eds) Chronic Diseases of Lifestyle in South Africa since 1995 – 2005. Medical Research Council Technical Report.
  3. United Nations (2002) Report of the Second World Assembly on Ageing.
  4. Taylor, Seeley and Kajurac (1996) “Informal care for illness in rural southwest Uganda: The central role that women play.” Health Transition Review, 6, pp 49-56.
  5. Budlender (2004) “Why Should we care about Unpaid Care Work?” Harare, Zimbabwe, United Nations Development Fund for Women, Regional Office for Southern Africa and the Indian Ocean States.
  6. Antonopoulos and Toay (2010) “From Unpaid to Paid Care Work: The Macroeconomic Implications of HIV and AIDS on Women’s Time-Tax Burdens”. In UNESCO (2010) The Implications of HIV/Aids on Women’s Unpaid Labour Burden (2010) www.unesco.org.
  7. UNDP (1999) “Time Budget Studies for Measurement of Human Welfare”. In Integrating Paid and Unpaid Work into National Policies.
  8. Irwin and Lero (1997) Child care barriers to full workforce participation experienced by parents of children with special needs—and potential remedies.
  9. Anderson, Dumont, Jacobs and Azzaria “The Personal Costs of Caring for a Child with a Disability: A Review of the Literature”. Public Health Report, 122(1) 3 – 16.
  10. Smith (2006) “Not the Baby and the Bathwater: Regulatory Reform for Equality Laws to address Work-family conflict”. Sydney Law Review, 689.
  11. Fredman (2004) “Women at Work: The Broken Promise of Flexicurity”. ILJ (UK), 299 at 300
  12. Gaze (2002) “Context and Interpretation in Anti-Discrimination Law”. MULR, 325 at 347.
  13. Cohen and Dancaster (2009) “Family Responsibility Discrimination Litigation – A Non-Starter?” Stellenbosch Law Review, 2 (221) at 227-8.
  14. Williams and Segal (2003) “Beyond the Maternal Wall: Relief for Family Caregivers who are discriminated against on the Job”. Harvard Women’s Law Journal, 77 at 80.
  15. See New South Wales Premier’s Department (2000) Strategies for Flexible Workplace Arrangements. Accessed at www.premeirs.nsw.gov.au.

Goverance and the Human Rights Challenge in Africa

Last week I attended an African regional dialogue at the Pan-African Parliament in Midrand, Gauteng, to discuss the “Post-2015 Development Framework”, a pseudonym for the vision of development after the expiration of targets for the Millennium Development Goals (MDGs). Considering the discussion centred on governance in Africa, subsequent thoughts on the meeting have been in turn determined by the failure of the Mo Ibrahim Foundation to award its annual prize for governance in Africa to any leaders. This is the third time in its six year history that the prize has not had a winner.

Sitting in the parliamentary chambers, listening to both African MPs and civil society discuss their thoughts and experiences of governance and the MDGs in their respective countries, it struck me that very few people attending had a reliable, broad and inclusive idea of the many development and governance-related challenges faced by Africa as a continent, or if they did, few were willing to speak critically of their own governance weaknesses. But this is to be expected due to the heterogeneity of the African continent. It is difficult to generalise the African experience and this is what makes defining a universal development trajectory almost impossible. As Geraldine Fraser-Moleketi (UNDP) stated in her speech at the dialogue, development involves and requires complexities.

However, with few exceptions, there was resounding agreement that the democratisation of African states is necessary to drive development. The question though, is whether democratisation is “good governance” and why the facets of this continue to fail in African states; as is indicated by the failure to award the prize. It was generally agreed that there has been some success in the achievement of MDGs. However, the success has been blighted by the failure of the goals to make the changes to peoples’ lives that were hoped for. Widening inequality in developing states is one indication of these inadequacies. Another is how the MDGs are foreshortened or subverted by other issues which may or may not have been taken into account. For instance, as Jay Naidoo so rightly points out, even though we have reached near universal enrolment in basic education, high rates of school dropout leave our children with poor skills and education levels and condemns them to a life of little opportunity; thereby subverting any tangible difference the education-related goals can make.

There was some consensus on those issues, past and current, who threaten the development trajectory of Africa. Time again, the following was mentioned:

  • The use and distribution of natural and financial resources through means which are not transparent or effective;
  • The restlessness and anger of the youth and the large percentage of the population who are youthful and unemployed;
  • An ineffective and corrupt civil service;
  • Unfair and imposed conditionalities on aid;
  • Growing inequalities despite overall positive growth trends;
  • The effects of climate change;
  • Poor education levels leading to lack of basic numeracy and literacy;
  • The on-going and future reduction in donor commitments.

However, a reoccurring theme throughout these discussions was lack of participation. This was in reference to youth, women and the poor in relation to governance, and governments in relations to donors. As Charles Abugre Akelyira (UN Millennium Campaign) said tellingly, when discussing the convergence of the political elite with the economic elite, “We need to contain the powerful so that the weak have space”. A commentator from the audience insisted that the international community is supporting the symbols of corruption by supporting the dictatorships which currently exist in Africa, thereby entrenching the powerlessness of citizens.

How do we open up spaces for participation in Africa? How does the governance framework for post-2015 look and how do states go about overcoming their development challenges? Does development require good governance or does good governance require development? Trends indicated by the Ibrahim Index of African Governance are concerning, especially when South Africa’s governance rating seems to have declined and stagnated at 71/100, with reductions in Safety & Rule of Law and Participation & Human Rights. As one of the more developed states in Africa, and in light of the fact that our Constitution is considered one of the most progressive in the world, the declining rating on human rights is particularly disconcerting.

The representative of the UN High Commission on Human Rights, Marco Kalbusch, gave a strong case for the importance of human rights and democracy in sustainable governance. However, his referral to human rights made me consider how poorly Africa seems to be doing in this regard. Although human rights principles include universality, indivisibility, equality and non-discrimination, accountability and the rule of law and participation, even in the more advanced democratic and constitutionally-driven countries in Africa, the commitment to human rights holds few of these principles. In fact, I would even suggest that Africa’s commitment to human rights is inconsistent and at times, invisible.

This is just one challenge to both governance and development. Development is about people; it is about giving people access to benefits of development and the ability to participate actively and without fear in their social, economic and political worlds. This requires a commitment to socio-economic rights and development processes; including the continued commitment to the MDGs, despite their imminent expiry date.

For the future, it is important that the facets of good governance are part of the development agenda. These facets can include: free, impartial and fair elections, people’s development, commitment to rule of law, political freedom and non-discrimination; to name a few. This should also include a commitment to human rights. In fact, it may be important to have this commitment as a separate one, divorced from its dependency on governance, but a requirement free and off itself.

More importantly, it is not about some human rights for some, but all human rights for all. It concerns me that there is no universality of human rights within Africa, that gender disparities are deeply entrenched, that xenophobia is enhanced and supported through discriminatory laws, that children are still recruited as soldiers and that homosexuals still face prison sentences. There is no justification for these continued discrepancies and it is time that Africa starts to seek a common human rights agenda. Without it, the governance index in Africa will continue to decline and development will continue to disappoint.

By: Claire Martens

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.