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.

Powerful powerlessness and what I learnt about leadership

On Friday, 17 August 2012, I attended what was essentially an opportunity to celebrate the work of Ruth First, but also a colloquium on inequality, where I expected to walk away with a better understanding of and answer to what is considered to be South Africa’s foremost challenge. Instead, I felt that the speakers were finding it difficult to address the topic of inequality within the framework of Ruth First’s writings, as well as addressing the subtheme to which they were allocated.

At the same time, flickering amongst the audience, some of whom were glued to their mobile phones, was an awful awareness that South Africa had just been witness to a national tragedy. A level of outrage about the Lonmin mines killings was voiced by some of the commentators and some of the speakers themselves condemned the shootings. Some asked what Ruth First would have said, but the answer is difficult to know. Some speakers tried to voice an opinion on what Ruth First would have thought of democratic South Africa in general, but twitter followers berated such attempts.

However, the more I learnt about the former activist and journalist, the more I wished to have grown up during a time when I may have been intimately influenced by her thinking and her work. Learning more about Ruth First made me realise the dearth of people like her that currently exist in South Africa. It was apt them that the issue of leadership arose, as well as the question of, “who has the power?” The issue was also raised about critical journalism and learning from the past. All of these topics are central to the tragedy which permeated the room. The questions which have arisen in the media since the Lonmin killings are questions of power, leadership and accountability. Perhaps the biggest question is “how could this happen and why wasn’t something done to prevent it?”

Speakers at the colloquium asked the bigger questions. Njabulo Ndebele struck at the heart of leadership shortages with his illuminating answers to why democratic South Africa has perpetuated all of those things which were fought against during the struggle. People fought against violence and racism; yet, both of these exist strongly today. He suggests that since 1994, no one has claimed the problems and embraced them as problems which they are responsible for by virtue of their office. None of these problems have been subjected to a visionary mandate; instead government has shown the people how to govern through demonstrations.

He asks why powerful people demonstrate when they have the power to change things, perpetuating what he calls a “powerful powerlessness”. The abandonment of the social vision and the lack of rationality within the public is leading us to become “victims of our own actions”. While this discussion does not immediately allow us insight into why inequality exists and what can be done about it, it does speak to accountability and the implications of non-rational leadership.

Joel Netshitenzhe and Kate Phillips explored inequality probingly, seeking answers to the problems which have more practical implications. Joel Netshitenzhe suggested that an activist state as an instrument of redistribution is necessary and that good quality public services can reduce non-economic inequality. Kate Phillips suggested that “right to work” programmes (public employment programmes), such as those found in India, can contribute to reduced inequality, at the same time that broader strategies are implemented; strategies which may take a while to show improvements. The importance of these public employment programmes is that it mobilises people within communities to undertake activities to improve their local environments.

A fascinating anti-neoliberal (or perhaps pro-socialist) theme ran through some of the discussions. It was even suggested that democratic South Africa was defeated by global capitalism. One audience member mentioned that alternatives are available in systems like solidarity economies and eco-socialism. But perhaps the raison d’etre for such a theme is to get the audience thinking about new ways of approaching the economic system and perhaps an attempt to find a solution to inequality which is slightly more radical. I accept such a point; considering how endemic and systemic inequality has become. Perhaps we need to start thinking in different ways about politics, the role of the state and our economic systems in order to really deal with inequality in a way which sees universal and powerful results.

While I don’t have the intellectual capacity or knowledge to make any further comments on this, the idea of “changing the whole” (my words) was interesting for me while considering further the reality of leadership of this country and the role models that currently exist. Maybe all it really takes to fight inequality is someone with vision, a powerful intellectual mind, who thinks less in dollars, than in humanist terms. A leader would accept responsibility for poor decisions and bad deeds and accept South Africa’s problems as their duty to overcome. More than that, it would take someone who is willing to apologise to the miners for what has happened and condemn the killings. While NGO’s mobilise around the tragedy, I ponder on the actions which government will take. I challenge them to lead. I challenge them to lead differently; to be diligent, forceful and visionary.

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.

Launch of the Investment Policy Framework for Sustainable Development

The latest Africa Economic Outlook has recently been released and shows growth trends in Africa to be encouraging. South Africa is certainly running with the pack in this regard. That South Africa is both a destination for investment, as well as a source of investment, formed part of the discussion about international investment trends during the Launch of the Investment Policy Framework for Sustainable Development, which took place at the Chalsty Centre, at the University of the Witwatersrand, on the 26 July 2012. Speakers were James Zhan from the United Nations Conference on Trade and Development (UNCTAD), Stephen Gelb, Professor of Economics at the University of Johannesburg and the South African Minister of Trade and Industry, Dr Rob Davies.

The fact that developing countries are now entering the investment sphere as potential investors, and the fact that sub-Saharan Africa is now a significant investment destination, shows that the South and East are becoming noteworthy economic players. What was most interesting about the discussion was the “new” role of government (which favours regulation and protectionism) and that fact that not all investment is good for a country. The example of Wallmart entering South Africa was briefly mentioned here. This suggests that if a government is given more of a role in regulating investment, then government has some responsibility in insuring that growth in a country is not contrary to the laws and principles, as well as other policies, which already exist in the respective country. In South Africa, the Constitution should play a central role in guiding the principles of investment, whilst economic targets like skills development, technological transfer and enterprise development, as suggested by Stephen Gelb, can be factored into any investment treaties.

But what is the role of the Investment Policy Framework for Sustainable Development? As Stephen Gelb noted, investment inputs and outputs in South Africa have always been measured within a short-term framework and have focussed too heavily on quantitative values, leading to unwarranted worries; some of which recently sparked debates about nationalisation. He was talking of the 2010 slump which saw our Foreign Direct Investment (FDI) drop by 70%. As he points out, we have recovered sufficiently now to understand that South Africa was not in the sort of danger which was predicted. For this reason, he feels that the Framework is necessary to guide our thinking, ensure that we understand long-term trends and locate our debates within the international sphere.

I was impressed by a number of aspects of the Framework. Firstly, the Framework contains a number of values and principles for investors and host countries; suggesting regulation, cooperation, fairness and inclusive growth and so on. Furthermore, the Framework introduces sustainable development thinking into policy. While a definition of sustainable development is not given, it does suggest that social and environmental concerns are flagged. The Framework is considered a guide, to be used voluntarily by governments when framing their investment policies, using the expertise and experience from a number of well-respected specialists; including Dr Rob Davies. Most importantly, the Framework is a living document for those who use it, inviting commentary and suggestions.

Going back to the Africa Economic Outlook, it is suggested that youth unemployment will lead to more instability in Africa; with poor quality education to blame for excluding the youth from economic opportunities. While education has the greatest share of our national budget, South African’s are well aware of its continued failings. Should it be then that Government looks at new ways to invest in education, youth development and employment – all of which is crucial for future generations.
What are your thoughts on the Investment Policy Framework for Sustainable Development? Do you agree that the state should play a more active role in the investment flows? What do you think should be the focus areas for investment?