OPERA: How Strategic Litigation + Strong Data = Implementation

In a new case study, the Center for Economic and Social Rights (CESR) and the Legal Resources Centre (LRC) reflect on a joint project piloting the use of the OPERA framework to analyze implementation in a case on the right to education in South Africa.

CESR and the LRC piloted OPERA in Madzodzo v Department of Basic Education, a case about chronic school furniture shortages that was brought by the LRC on behalf of the Centre for Child Law and a number of schools. In Madzodzo, the South African High Court declared that the government’s failure to address protracted delays in providing desperately needed desks and chairs to schools in the Eastern Cape was a violation of the Constitution’s protection of the right to a basic education. However, various rounds of litigation – resulting in multiple agreements, extensions, and a decision from the High Court – had not produced the desired results.

Madzodzo reflects a broader trend in socio-economic rights litigation in South Africa over the past 20 years that has seen courts increasingly ordering “dialogic” remedies—meaning the responsible government agency retains discretion to determine how it will rectify a rights violation. Unfortunately, government agencies have frequently failed to properly implement these types of orders, limiting the transformative potential of strategic litigation on economic and social rights.

“After years of engagement with the education department, thousands of learners continue to spend their days sitting on the floor, or squeezed together at desks that are broken, not designed for their age or otherwise unsuitable,” noted Cameron McConnachie, attorney at the LRC. “In this context, we were eager to explore ways to facilitate more constructive, evidence-based dialogue with the education department, to strengthen accountability for their failure to implement the court’s decisions.”

OPERA, which stands for Outcomes, Policy Efforts, Resources and Assessment, is an analytical framework that supports human rights advocates to use innovative methods for collecting, analyzing and presenting evidence of non-compliance with economic and social rights standards. When combined, the four steps enable a more convincing demonstration of the links between policies on paper and their impact on the ground. The Madzodzo pilot explored its potential for identifying quantitative and qualitative indicators to track progress in implementation and for gathering information on those indicators. This information was used to support follow-up legal proceedings, as well as dialogue on implementation, more broadly.

CESR and the LRC used OPERA to carry out a rigorous analysis of the documents submitted in the case, finding that up to 40% of all schools in the Eastern Cape were in need of adequate furniture, despite the allocation of approximately R290 million for such goods in the province between 2013 and 2015. Procurement and delivery processes were found to be characterized by irregularities, lengthy delays and poor management. We also found that past solutions failed because they did not address root causes such as poor information management systems on the school, district, provincial and national levels or the absence of furniture as an element in any infrastructure plan for the school system.

Nevertheless, the starkest takeaway from this analysis was the complete unreliability of the education department’s data on school furniture. Our subsequent strategy focused in large part on obtaining better data. We pursued this strategy in a number of ways:

  • by providing detailed recommendations to the national and provincial education departments on how to conduct an effective furniture audit, as well as on improving its information management systems;
  • by requesting access to relevant databases maintained by the education departments; and
  • by experimenting with mobile messaging platforms for communication while gathering information from schools directly.

Interestingly, the pilot project illustrated that the four steps of OPERA could align neatly with the various components of a judicial decision – a discovery that eventually facilitated significant steps towards compliance. In particular, it provided a cohesive system for categorizing, systematizing and, importantly, identifying gaps in the data that had been submitted in the case.

Systematizing that data, in turn, deepened our understanding of the political and structural limitations inhibiting productive operations within the department. The order made by agreement in February 2016 reflects the significant impact of applying OPERA to the case, in that it set out significantly more detailed obligations than previous orders, in terms of remedial actions to be taken. This has yielded greater visibility of the problem; increased the information available about it; and, importantly, helped identify energetic, dedicated officials willing to engage with it.

Read the final report: CESR_LRC_OPERA_Pilot.

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The Right to Education post-2015

The fundamental right to education must include quality education – and standardised measures of outcomes must be introduced to ensure equality, quality and accountability. The future development agenda should be committed to its enforceability. These were some of the conclusions following two days of thought-provoking presentations and discussions during a conference held last month.

The conference, “The Justiciability of the Right to Education in the post-2015 Development Agenda”, and was held on the 25 & 26 May 2015 in India, by the Legal Resources Centre (LRC), in collaboration with the Centre for Law and Policy Research (CLPR). See the CLPR to download the presentations.

The UN Special Rapporteur on the Right to Education, Dr Kishore Singh, opened proceedings by highlighting the fact that this right is justiciable in many countries, with India leading the way. In relation to the development agenda, Singh highlighted the fact that, for various reasons, the Millennium Development Goals (MDGs) have not been achieved as envisaged. Two of the principal reasons for this are a lack of financing and a lack of monitoring – issues that would need to be addressed in the post-2015 Sustainable Development Goals (SDGs).

Kishore Singh addressing conference
UN Special Rapporteur on the Right to Education, Dr Kishore Singh

Overview of presentations

Swati Sharma of Centurion University discussed the role of public-private partnership and corporate social responsibility in respect of education. She emphasised that, while state investment in education was a priority, the burden should be shared with the private sector, arguing that skills development was a key factor in achieving quality education and that businesses can play a key role in skills development and ensuring the right to education generally.

Professor Sandra Fredman of Oxford University gave a very informative overview of the right to education. She explored the relationship between development goals and human rights. She highlighted the fact that, as the MDGs focussed on enrolment, there was no measure of the quality of education. She noted that the SDGs are more ambitious and focus on “equitable quality education” and “lifelong learning for all”.

Professor Salomao Ximenes of the Sao Paulo Federal University informed participants of the education litigation which has taken place in Brazil. In particular, a recent case concerned the lack of pre-school places available in Sao Paulo. In 2012, the court ordered that a public hearing be convened to deal with the matter, and ordered that 150,000 pre-school places be made available, and that the municipality had six weeks in order to present a plan to the court setting out how this would be done.

Sarah Sephton, Cameron McConnachie and Jason Brickhill of the Legal Resources Centre provided details of the cases litigated in South Africa, and the remedies and enforcement mechanisms available through the courts. The strategy used has been to start with smaller cases, addressing issues such as furniture, then move onto larger and more complex cases. They have not yet tackled the issue of the quality of education, an area of litigation the LRC are hoping to embark on.

Jason Brickhill spoke about enforcement measures, such as the recent appointment of a “claims administrator” to oversee the correct payment of R82 million of teachers’ salaries. He ended on a positive note emphasising that the successes of the litigation so far.

Jayna Kothari, Aparna Ravi and Varsha Iyengar from CLPR began the second day of the conference by presenting on education litigation in India. The most important legislation passed in respect of education in India has been the Right to Education Act 2009, which provides for free and compulsory education for 6 – 14 year olds. Controversially, the Act contained a clause which stated that private schools must admit 25% of children from disadvantaged areas, for a fixed amount of compensation to be paid by the state. This has produced unintended consequences. Private schools challenged this through the courts, resulting in funded and un-funded minority schools being exempt. This has opened a floodgate of schools which claim they should be exempt as they are a “minority” school.

Kothari gave a presentation on remedies in India, explaining the challenges that have been met in designing remedies for education cases. Carefully worded remedies are necessary. However, the court has refused to grant orders and, instead, put in place a High Powered Committee to deliberate a plan for the right to education, to meet every month. On the one hand, this process creates a participatory process whereby stakeholders are able to be engaged with the enforcement of the RTE Act, and to design policy in relation to it. However, on the other hand, it has been very difficult to suggest accountability or monitoring measures to the government.

Cameron McConnachie with other conference speakers
Cameron McConnachie with staff of the CLPR

Niranjan Aradhya of the Centre for the Child and the Law in India gave an in-depth analysis of the rights and limitations as set down in the Right to Education Act 2009, explaining that, despite the Act, inequalities in the education system in India remain glaring. He made suggestions for the post-2015 development agenda; that 15% of GDP of states is spent on education, as well as checks on privatisation, commercialisation, corporatisation of education, and a re-emphasis on education as a social good.

Ramya Jawahar and Gowthaman Ranganathan of the Alternative Law Forum (ALF) spoke of the various methods employed by ALF to enforce socio-economic rights. They use an inter-disciplinary approach combining research and the law to achieve the greatest effect. They also highlighted the wider issue of the government’s tightening of funds in the non-profit sector, referring to recent cases whereby the accounts of Greenpeace, the Ford Foundation and Amnesty International had been frozen.

Avni Rastogi of Transparent Cities Network and the Community Service and Outreach team gave a detailed explanation of the mapping and data collection methods which can be used to collect accurate data to present to the court. The methods provide imaginative and reliable solutions which could support education litigation.

Conclusion

The conference concluded with a discussion of three principal themes which had emerged: i) the role of litigation, ii) the issue of equitable and quality education, and iii) education in relation to other issues. In relation to litigation, a principal concern is that litigation needs to change on the ground and engage with communities. In respect of quality education, a principal issue is that of monitoring and measuring outcomes. As an input method to achieve better outcomes, a suggestion was further teacher-training and improving the quality of teachers. Governments need to be held accountable if they are not attaining the goals set out in the post-2015 development agenda. Governments must invest more in education and regulate the private sector.

Dr Kishore Singh closed the conference with confirmation that he will ensure the issues discussed at the conference will be incorporated to discussions surrounding the post-2015 development agenda. It is clear that principal concerns are the measurability of quality education and accountability of governments. In terms of litigation, the countries represented at the conference have developed jurisprudence whereby the right to education is enforceable through the courts, and it is hoped that many more jurisdictions will follow suit.

Please see the CLPR website to download the presentations.

– By Shona Gazidis

Cameron McConnachie and Kishore Singh
Cameron McConnachie and UN Special Rapporteur on the Right to Education, Dr Kishore Singh

Realising the Right to Education in Uganda

Workshop report: Realising the Right to Education in Uganda

LRC and ISER create a space for learning and collaboration in Uganda

The Legal Resources Centre (LRC), in collaboration with the Initiative for Social and Economic Rights (ISER), hosted a two day workshop on 18-19 March 2015 in Kampala, which focussed on using strategic litigation to realise the right to education in Uganda.

A range of local organisations attended the event; including the Legal Brains Trust, the Ugandan Human Rights Commission, Centre for Public Interest Litigation, as well as Women for Uganda and Girls’ Education Movement. Over 40 participants attended over the two days.

ISER, an independent human rights organisation responsible for promoting the effective understanding, monitoring, implementation and realisation of economic and social rights in Uganda, has recently embarked on litigation in respect of education, and welcomed the opportunity to receive advice and guidance from the LRC.

The workshop was officially opened by Justice Lydia Mugambe, a Ugandan High Court Judge, who encouraged advocates to “think outside the box” and employ innovative methods when litigating socio-economic rights cases. She explained that the time is right to launch socio-economic litigation, and that courts are ready to hear these cases.

Salima Namusobya, executive director of ISER, gave a presentation on the current education system in Uganda, and outlined the major concerns. She described the fact that there is declining investment in public education, while there is an increase in investment in private education. Many classrooms in public schools have no furniture or sanitation, and children are forced to share textbooks and other equipment. Children of different ages and in different classes are forced to sit in the same cramped classrooms. At the same time, there has been an increase in the number of low-fee private schools with the support of the state. The concern is that these schools are unregulated and enable the state to relinquish their obligation to provide a good quality education in state schools.

Ms Namusobya explained that ISER launched a case in respect of the right to education last year, in an attempt to prevent the state cutting school capitulation grants from Shs 7,000 to Shs 4,000 per pupil per annum. The registrar who initially heard the case denied the order, with the State arguing that it would stop the reading of the budget taking place, and thus financially affecting the whole country. Therefore, the case is still before the court. The case did, however, highlight the issue, and the Minister of Education confirmed in parliament that the grant would be maintained this year and, perhaps, even increased next year.

Sarah Sephton, an attorney with the LRC, presented on the education system in South Africa and the successful litigation which has been undertaken there. It became clear that many of the problems in Ugandan public schools were very similar to those addressed in the LRC’s cases. Sephton explained that cases had dealt with “mud schools,” whereby the state had been ordered to rebuild schools made of mud and makeshift material. Other successful cases had seen the state ordered to provide furniture in schools, provide school infrastructure and to appoint and pay teachers.

Sephton explained that the cases had not been straightforward and that, although eventually successful, the LRC had to repeatedly return to court when the state defied court orders, and that there are on-going problems with implementation. However, she explained that litigation had now become a successful and important tool in forcing the government to fulfil its obligation to provide each child with a decent education. The LRC also distributed “Ready to Learn…. a legal resource for realising the right to education,” a publication which sets out each of these cases in detail and provides examples of court documents.

The workshop was also an opportunity to consider the role of litigation in relation to other advocacy methods. Shona Gazidis of the LRC prompted a discussion regarding other strategies, such as providing public information, social mobilisation and establishing community advice centres, and how litigation can be used in conjunction with these strategies to produce the best results.

Although the workshop was an opportunity to discuss issues in an African context, the right to education is a global issue and therefore the workshop also considered the Millennium Development Goals, as well as the proposed post-2015 Sustainable Development Goals, with a particular focus on the role of education in the global development agenda. Litigating the right to education not only improves conditions for children in the respective countries, but contributes to the achievement of the wider global development goals.

Finally, a discussion was led by Isaac Kimaze of the Legal Brains Trust with regard to what possible cases could be litigated in Uganda. It is anticipated that this discussion will continue, with the guidance and advice of the LRC.

The workshop was an opportunity to increase collaboration between African organisations, thus strengthening the African human rights network and contributing more generally to the global human rights agenda. It is hoped that the success of the workshop will result in successful litigation in respect of education and other socio economic rights in Uganda, and lead to improving the lives of the most vulnerable and disadvantaged members of society.

– Shona Gazidis

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.