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.

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Refugee processes require independence

Refugee minor reunited with his mother

Over the last few years, the Department of Home Affairs (DHA) has faced a handful of criticisms. From hasty closures of Refugee Reception Offices (RRO) to the damning reports of poor conditions in the Lindela Repatriation Centre, there is much fodder for this condemnation.

While many DHA practices are unforgivable, it is not surprising that the same institution charged with regulating immigration treats refugees so contemptuously.

The DHA enforces both the Immigration Act and the Refugees Act. The Immigration Act is protectionist legislation, aiming to preserve employment and educational opportunities for citizens. On the other hand, the acceptance of refugees – people who seek safety and solace – is undoubtedly a humanitarian activity.

Improving conditions for refugees will take a multi-pronged approach; however, we must acknowledge that some of the existing conditions are unavoidable when the DHA is called to implement the Refugees Act and the Immigration Act, two pieces of legislation that occasionally butt heads. The inherent conflict in the process has resulted in the poor treatment of asylum-seekers and the development of distrust among all involved parties.

If the mechanisms dealing with refugees are to be improved, the relevant institutions must be independent from the DHA. In fact, this model of institutional independence is not new and has been employed in various contexts.

Take for example the Independent Police Investigative Directorate, which investigates complaints lodged against the South African Police Service (SAPS). Institutions like the Directorate exist because there would be a complete lack of confidence in a complaints mechanism directly connected to SAPS.

The threat of deportation or the lapse of a transit permit, among other things, inject fear into asylum-seekers and refugees. Even people who have held valid refugee permits for several years retain this fear, which only compounds the anxieties arising in their everyday lives. For many, a system independent of the DHA can alleviate some of those fears and infuse a necessary sense of security in the process.

Admittedly, the South African asylum-seeking process is not completely void of independence. In fact, there is an independent six-person Refugee Appeal Board (RAB), which exists to enforce the Refugees Act, as well as relevant international conventions. However, when the system is as backlogged as it is (as of April 2012 there were 87,602 RAB reviews pending) and the RAB is only accessible during an appeal, the potential strength of the board is diminished.

Some may have apprehension at the thought of a more independent system. They envision a deluge of asylum-seekers successfully claiming refugee status under false pretenses. However, the aim of this suggested bifurcation would not be leniency, but rather an infusion of humanitarian principles into the process and a clear focus on the goals of the Refugees Act.

Many countries have asylum processes that are linked to immigration enforcement agencies, but it is important to note that these countries lack South Africa’s history. Not so long ago, many exiled anti-apartheid activists sought the support and protection of other nations; these experiences cannot be forgotten. South Africa should aim to be a source of enlightenment when it comes to refugee rights; however, as of now, it is heading rapidly down the wrong path.

By: Estelle Hebron-Jones

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.

When Litigation Serves a Greater Purpose

Faith47’s artwork in Cape Town depicting the words, “All shall be equal before the law”

In a recent article published by the Mail and Guardian, it feels as if the writer failed to give a comprehensive and considered account of another perspective on the current education crisis and it is the purpose of this post to respond to the article.

While I can only assume that the purpose of the piece is to articulate a case study account of ways in which civil society organisations go about the business of implementing education initiatives, and while I concede that it is necessary to explore the different means through which it is possible to achieve certain education-related goals, the article gives the inference that legal initiatives aimed at promoting the right to education are confrontational and ineffective. I can only surmise this due to the fact that the paragraph detailing recent education cases is left unexplained; subsequently looking accusatory in the context of an article which carries a pointedly positive spin on the Kagiso Trust.

The Trust’s project, which is discussed in some detail, may be an important and effective programme but this point is circumscribed by the way in which the Kagiso Trust chief executive Kgotso Schoeman is quoted. “At Kagiso Trust we ask ourselves: ‘How do we help the government spend its money?’” He is then quoted as saying that, “We never make the government feel threatened. We try to build a strong and trusting relationship with it and only then do we start the robust discussions.”

Placed within the context of the paragraph on recent education litigation, one wonders about the intention of using these particular remarks. If the point is to critique the way in which civil society engages with government, then it is important to understand why legal NGOs litigate and the process adopted when confronted by a human right’s issue. For many people reading about education litigation, they are only being made aware of a small part of the process. Little is mentioned about the negotiations which happen prior to a case or the number of other cases which have been settled outside of the courts. Generally, nothing is mentioned of the time, patience and ultimate frustration which lies behind these actions, where the expense of appearing in court is held off until there is no other option for redress. The intention is not to threaten government; instead NGOs are generally open to debate or discussion with government in order to find an acceptable path to a solution.

In fact, I would go so far as to mention the irony of thinking that litigation is an act against government in respect of education cases. Often public interest litigation organisations are staffed by people who were fighting for democracy during Apartheid, fully supportive of the new government which came into power in 1994. The generic terminology for their organisations points at the principle which drives their work; if they feel litigation is in the interests of the public then they will pursue the litigation. This is not an “us against them” scenario, but an attempt to advance certain values.

Being part of a public interest litigation orientated organisation doesn’t result in the repudiation of other initiatives, however. When society requires mobilisation around an issue, it necessitates all kinds of initiatives. However, it is frustrating to see the negation of the need for a legal remedy just because a court case is perceived to be a battle against government.

Litigation is a necessary instrument in our democracy and public interest law firms are the basic machinery of this. As Faranaaz Veriava says in a recent article in the Mail and Guardian, “The value of litigation, however, lies in the ability of social movements to use it strategically as a key tool in a broader campaign of direct action.” In this she recognises the value of litigation in giving additional leverage to movements.

Public interest litigation is necessary in every country throughout the world. A right on paper is only as good as its implementation. Public interest law firms are essentially partners in the implementation process; giving the poor, marginalised and disenfranchised the power to pursue their rights. South Africa is one of few countries in Africa which recognises that people require assistance in courts, helping to equalise the law by making it applicable to everyone and by providing the poor with legal aid in order to give their rights substance. A court order has the additional strength of longevity and enforceability, and the bonus of precedential or common application.

Sometimes, when no one else seems capable, public interest law firms will take the initiative to equalise the law on a universal level, recognising the power of a court order over and above the protracted and sometimes difficult process of negotiations or civil mobilisation. When it comes to the Limpopo textbook saga, commentators after ask why the teachers, principals or parents didn’t do something before. But when these people are silenced, then it may be necessary to take a direct route, which may be observed as confrontational, but really shows the degree of perceived necessity.

Recent education cases must be recognised as vital to the pursuit of a quality education. Equal Education’s norms and standards case will be an effective way to guarantee that the Department of Basic Education sets out standards for education, giving the right to education a substantive framework from which to move forward. The LRC’s post provisioning case recognises the role of teachers in education and highlights the various administrative issues which substantially impact on education. These cases will both support, and be supported by, the recent Limpopo textbook case.

Most importantly, however, all of these cases will act as a guides, supplements or powerful tools for any additional or complementary activity or initiative. The mutually-reinforcing quality of all initiatives implemented in this country need to be acknowledged, not negated.

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.

Corruption: Strategies Require the Right Conceptual Framework

I have lately become convinced that the nefarious terms “corruption”, “nepotism”, “cronyism” and “tenderpreneurship” are becoming so entrenched in descriptions of government in South Africa that it is becoming impossible to think about government factually, taking into account that not all inefficiencies in government are immediately corrupt. It is becoming an assumption that government as a whole is corrupt – full stop.

On a particularly cold day a few weeks ago, while the media continued to flame the fire of discontent, I was given the opportunity to expand my own thinking around the issue of corruption during a two-day symposium hosted by the Public Affairs Research Institute (PARI) and Innovations for Successful Societies Programme (IISP). This article serves to summarise some of what was discussed. This thinking is not mine, but must be credited to the speakers which included: Laura Bacon and Gabriel Kuris from Princeton University; Ivor Chipkin, Linda Chisholm, Jeremy Cronin, Simon Dagut, Barry Gilder, Kelly Gillespie, Richard Levin, Pascal Moloi, Anne McLennan, Bongani  Ngqulunga and Ivan Pillay.

After two days of presentations from people who dealt with the topic from different standpoints, sometimes approaching the topic from their own experiences in government departments or as advisors to government, and sometimes as academics who have studied the public administrative service, it was largely agreed that corruption can be understood in many ways, and not always strictly in the contemporary sense of the appropriation, for private use, of resources or goods arising from public or official office. Secondly, corruption is not always about immorality or lack of goodness.

An element of corruption is non-compliance and, as explained by Ivor Chipkin, is indicative of weak institutions. Absences in processes, contradictions in policy processes and dysfunctional processes can lead to what is perceived as corruption, but is really faulty aspects of the administrative environment which reinforces non-compliance.

While commentators in the audience felt that it is not satisfactory to discard the moral dimension of corruption entirely, there was consensus on the idea that what is perceived as corruption cannot always be framed in this singular, restrictive way and that different truths of corruption require different anti-corruption efforts. Consider “small corruption” versus “big corruption” or “administrative corruption” versus “political corruption”.

While case studies of anti-corruption efforts showed that it is possible for a small group of committed individuals to decrease corrupt activities, it also shows that “geographical” scope (for example city-wide corruption) can play a role in determining the effectiveness and ease of anti-corruption efforts. When corruption is institutionalised, as a few speakers agree is the current situation in South Africa, the efforts require a more radical approach, one in which the entire system is overhauled; suggested by one commentator as “political reform”.

Scholars from Princeton University gave practical advice for anti-corruption efforts, suggesting looking at corruption from the viewpoint of the corrupted individual. Why is the person corrupt and what will happen if he or she is exposed? Six strategies suggested include: eliminating opportunity through streamlining procedures, creating a reward system, creating cross pressures by appealing to friends or family, shifting public norms but educating the public as to standard operating procedures, providing notice of what to expect from certain processes and seizing the moral high-ground by appealing to peoples’ better natures. While I admired the strategies and felt that they had some value, it wasn’t clear how, if corruption is already institutionalised, these strategies would lead to state-wide change.

How corruption became institutionalised in South Africa’s public administrative systems was also discussed. While the prevailing consensus looked upon history as the source of current corruption, and some even suggested that all states are corrupt, it wasn’t certain whether everyone agreed on what these historical processes looked like. While many speakers gave an opinion, it didn’t become ultimately clear as to how corruption came to look as it does today. Barry Gilder noted: “Corruption has become a political ping-pong ball…driven largely by generalised notions (implied if not stated) such as “all power corrupts”, “all politics is corrupt”, “all liberation movements-become-governments become corrupt”, “the ANC is inherently corrupt” and, the worst of these, “Black people are by nature corrupt”.

But let us explore some of the explanations of corruption. One prevalent explanation was that corruption had some beginnings in the administrative activities which occurred in homelands during Apartheid, which I gather from the speakers were incredibly corrupt. From what I understand of the process following this, when democracy occurred these individuals were absorbed into public service, the same service which we have today. With this absorption, their “normal” activities carried on, becoming entrenched in the system. This entrenchment echoes the idea which I have heard mentioned more than once in conversations with people: that everyone is doing it, and to be able to climb the ladder, you have to do it too or have friends in the right places. This idea is supported, in part, by the idea that neopatrimonialism (appropriating public goods for relational/familial use) has contributed to corruption (nepotism or cronyism?) within the public service – you look after your family and your friends first. The “homelands explanation” points a finger at the way that Apartheid impacted on social and institutional activities. It was suggested that corruption was necessary in the homelands and that Apartheid is largely to blame for the administrative and political corruption we face today.

I was particularly intrigued by explanations of the State and answers to what is essentially the question of what the normative state of the State is. Simon Dagut feels that corruption can be considered the normal state and efficiency the unusual state. Dealing with corruption, therefore, requires creating the “unusual” conditions of state efficiency, not “stamping corruption out”. He suggests that the politics or the design of the state is not at issue, but rather the culture and tradition that matters.

The SARS experience, which was presented by Ivan Pillay, was interesting in its explanation of the principles which contributed to anti-corruption measures. The presentation also showed that SARS took a systemic approach to the issue, guiding the entire process towards efficiency, enforcement and responsiveness. They adopted a compliance model which asserts that most people will do the right thing, if they know the terms, and if you make it easy to comply. However, enforcement must be legitimate and the playing field must be impartial. The principle suggests that all are equal before the “law”, otherwise known as the tax collector.

What is clear from all of these explanations is that generalised notions of corruption are largely false. Generalisations about an activity which actually doesn’t have a linear explanation are entrenched within the South African psyche, but lead us nowhere in our quest to understand and overcome corruption. While I left the two day event a little more aware of this, I will still left uncertain as to way forward.

When it comes to strategies for overcoming corruption, what interested me most was the presentation on SARS anti-corruption efforts. While the issue of leadership was downplayed, I felt that this was a significant part of the success. Leadership based on principles, using a grounded philosophical approach with elements of integrity and constitutionalism, seemed to me to be the opposite of corruption and nepotism, and a means through these sinister aspects of a government department can be overcome. Professor Richard Levin spoke of the institutional culture of entitlement and impunity, a viewpoint which I can infer is held by a vast quantity of disgruntled South Africans. While cultural reform may be necessary, how this is done is the difficult part. Professor Levin hit the nail on the head when he suggested that there need to be consequences for non-compliance and poor performance, consequences which I feel should be implemented fairly and universally, creating a new culture of compliance. But this culture needs to start somewhere. While he suggests a part for civil society, I believe the beginnings of anti-corruption efforts needs to start at the place where it is thought to be happening the most; within the government. This includes improving systems to ensure efficiency, compliance and good performance. We also need to approach corruption as a symptom of immorality. How this can be done is uncertain, but comments are welcome.

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.