A Social Compact for Good Local Government and
Sustainable Development
Prepared by: Sarojini Persaud
Prepared for: UNDP Capacity Building for Local
Government Programme
Human Rights Approach for Local Government
TABLE OF CONTENTS
I. Background *
(a) South Africa’ Human Rights Mandate
(b) Connecting Human Rights with Duties
(c) Embedding Private Sector Duties in a Social Compact
(d) Rights, Responsibilities/Duties and Accountabilities
Human Rights and Governance: Role Players
and their Duties
Government as Facilitator and Enabler
The Principle of Co-operative Government
Provincial and Local Spheres of Government
Accountability and Local Level Democracy
Policy and Legislative Framework for Local Government
Background
(a) South Africa’ Human Rights Mandate
Post Apartheid South Africa can be characterized
as a constitutional democracy with a fervent intention to
firmly entrench a culture of human rights. This paramount
concern for human rights is a direct reaction to the indignities,
inequities and overall oppression of South Africa’s past
political, economic and social dispensation. But the legacy
of apartheid remains starkly visible throughout South African
society. For example, as a result of Apartheid’s Bantu
education system, gross inequalities in education expenditures
left a capacity building void, viz., human, capital, institutional,
in all facets of South African life. And the situation does
not seem to be improving as quickly as expected. In fact,
the results of the 1998 poverty hearings (the "speak
out" on poverty campaign) spearheaded by the South African
Non Governmental Organization Coalition (SANGOCO) found that
it was clear "that the problems of unemployment, extreme
poverty, harsh and cruel conditions on the farms, homelessness,
landlessness, and the ongoing lack of basic economic rights
such as shelter, water, (and) food are rooted in the way apartheid
capital developed…(and that) the problems of the poor
and of underdevelopment will not be resolved by the existing
development framework that government has embarked
on".
The Reconstruction and Development Programme
(1994) was the first development framework for post Apartheid
South Africa. It placed a majority burden on government for
the efficient and effective delivery of basic services as
well as the responsibility for stimulating social and economic
development. The private sector was not meaningfully engaged
by the RDP in terms of hard mandate / duties or responsibilities
for development. The is evidenced by the fact that section
1.1.3 of the RDP makes no mention of the private sector: "the
RDP has been drawn up by the ANC-led alliance in consultation
with other key mass organisations. A wide range of non-governmental
organisations (NGOs) and research organisations assisted in
the process". Government assumed responsibility for creating
favorable conditions for private sector investment and, therefore,
job creation. Clearly, there were no explicit duties set out
for the private sector. Rather, contributions to the development
agenda were left to the discretion of the private sector,
guided by its business imperatives, and notions of good corporate
citizenship / corporate social responsibility. The role of
civil society, via their organizations and institutions, was
very different. In fact, the RDP put an explicit duty on civil
society to actively participate in its implementation: "s.1.1.5.
Those organizations within civil society that participated
in the development of the RDP will be encouraged by an ANC
government to be active in and responsible for the effective
implementation of the RDP." It is quite possible that
such a strong emphasis on civil society derives from the right
to development as an inalienable human right and which, therefore,
requires that "the human person (be) the central subject
of development and should be the active participant and beneficiary
of the right to development." This mandate is made stronger
with the phrasing "all human beings have a responsibility
for development, individually and collectively, taking into
account the need for full respect for their human rights and
fundamental freedoms as well as their duties to the community.."
Of the three main players in a society i.e., the state, private
sector, and civil society, without doubt, the RDP put an onerous
burden on the state and a corollary duty on civil society.
Six years into the new democratic dispensation
(1994), the challenge remains how to make real a culture of
human rights particularly since the South African constitution
entrenches all categories of human rights. Revered for its
progressive and comprehensive nature, the South African Bill
of Rights includes civil and political, social and economic,
environmental and cultural rights but its major challenge
is turning such "paper rights" into meaningful change
in the lives of historically and presently disadvantaged citizens.
The fundamental need is still transformation – from a
state that promoted gross crimes against humanity (apartheid)
to a democratic state based on values of human dignity, equality,
human rights and freedoms, non-racialism and non-sexism, the
supremacy of the constitution and the rule of law, and accountable,
responsible and open government. South Africa’s vision
for itself, where human rights is the cornerstone of democracy,
is captured in the constitution’s preamble:
"We the people of South Africa, recognise
the injustices of our past;
Honour those who suffered for justice and freedom
in our land;
Respect those who have worked to build and develop
our country; and diversity.
We therefore, through our freely elected representatives,
adopt this Constitution as the supreme law of the Republic
as to –
Heal the divisions of the past and establish
a society based on democratic values, social justice and fundamental
human rights;
Lay the foundations for a democratic and open
society in which government is based on the will of the people
and every citizen is equally protected by law;
Improve the quality of life of all citizens
and free the potential of each person; and
Build a united and democratic South Africa able
to take its rightful place as a sovereign state in the family
of nations.
(b) Connecting Human Rights with Duties
The preamble is unequivocal about the role that
democracy, steeped in a culture of human rights, plays in
the new South Africa. It is arguable that this vision is about
good governance incorporating principles of human dignity,
fundamental freedoms, the rule of law, transparency, accountability,
citizen participation and protection, and sustainable human
development. These elements of good governance translate into
general standards against which all spheres of government
will be assessed and evaluated. But how do these standards
connect with specific rights? The following table attempts
to align the key elements of the preamble with specific rights
set out in the Bill of Rights so as to anchor South Africa’s
development and transformation goals in its democratic and
human rights mandate:
The word "laudable" is an understatement
when commenting on South Africa’s constitution. Its potential
is simply transformative. But the transformation
process has been slow partly because of how and where the
responsibilities have rested for ensuring the respect, promotion,
protection, and fulfillment of human rights. The primary location
of duty to realize the bill of rights has vested with government
– national, provincial and local. Section 7(2) of the
constitution affirms: "The state must respect, protect,
promote and fulfil the rights in the Bill of Rights".
Consistent with all international human rights instruments,
the state is the primary duty bearer for human rights. However,
the Universal Declaration of Human Rights in its preamble
speaks about "..a common standard of achievement for
all peoples and all nations, to the end that every individual
and every organ of society, keeping this Declaration
constantly in mind, shall strive…to promote respect for
these rights and freedoms…" The phrase "organs
of society" is well accepted to include the private sector
since corporations (juristic persons) are granted a license
to operate by the society within which they operate –
ergo, corporations are social constructions with legal persona.
In this context, the state is, therefore, not the only role
player with human rights duties.
South Africa’s constitution, in section
8(2) acknowledges corporations as having certain human rights
duties. The section reads: "A provision of the Bill of
Rights binds a natural or a juristic person if, and to the
extent that, it is applicable, taking into account the nature
of the right and the nature of any duty imposed by the right."
Section 8(4) clearly affirms juristic persons’ entitlement
to specific rights: "A juristic person is entitled to
the rights in the Bill of Rights to the extent required by
the nature of the rights and the nature of that juristic person".
These provisions leave the door open for the private sector
to share responsibility, with government and civil society,
for ensuring a culture of human rights. And evidence of the
private sector’s acceptance of responsibility exists
in the increasing acknowledgement of itself as a "corporate
citizen" and thus, a rights and duty bearer. The current
task, for the South African private sector, is to highlight
and understand the most crucial challenges relating to the
intersection between commercial interests and human rights.
An inherent tension for the private sector is the conventional
notion of private property and the enjoyment of property as
a basic human right. Shareholders are the owners of a corporation
so conventional thinking is that a corporation has only a
duty to derive the best dividend for its shareholders. Increasingly,
this thinking is shifting to recognize other groupings as
"stakeholders" with a vested interest in what private
sector organizations do. This argument is strengthened by
a recognition that no right is absolute and is limited by
corollary rights of others. Hence, the right to enjoyment
of property cannot prevail over an individual’s right
to a clean and safe environment, human dignity, equality,
etc. So the intersection between conventional private sector
operations and an acceptance of a human rights duty would
include, amongst others:
The division of roles and responsibilities
between government, NGOs and business
Finer distinctions and dilemmas in the relation
between business interests and human rights
How best to gain awareness of, and respect
for, human rights in connection with economic involvement...
(c) Embedding Private Sector Duties in a
Social Compact
A jurisprudential testing of the notion of private
sector human rights duties is being built up through challenges
based on ordinary legislation, which emanate from fundamental
human rights and freedoms, for equality, health and safety,
contract, tort/delict, etc. Actual South African test cases
are slowly being brought to the courts. Many of these cases
focus on the right to equality in employment, as set out in
South Africa’s employment equity act. But these cases
belong to a much wider debate about whether or not the performance
of multinational and national corporations should be externally
or internally/voluntarily regulated. Rather than go the route
of legislative and/or judicial enforcement viz., external
regulation, the voluntary assumption of a shared responsibility
for all categories of human rights seems to be a more attractive
alternative for South African corporations and MNCs operating
within South Africa’s geographic boundaries. This shift
towards a recognition of human rights and the duties that
derive from them clearly leads to a recognition that our paper
human rights need the concerted efforts of all sectors if
they are to become real and meaningfully affect the lives
of everyone but especially the disadvantaged.
The challenge is to develop models of governance,
within a human rights framework, which harness synergies
that accrue from a "Social Compact" between the
different sectors (e.g., public, private, voluntary) for all
levels of society i.e., national, provincial, and local. A
United Nations Development Programme (UNDP) policy document
provides a conceptual model for this by linking governance
and human development. It asserts that "human development
cannot be sustained without good governance. Governance cannot
be sound unless it sustains human development". The constitution’s
preamble is about precisely this indivisibility of governance
and human rights since sustainable human development is about
expanding the choices for all people in a society which requires
that people, especially the poor and vulnerable, are at the
centre of the development process. Not surprisingly, therefore,
the South Africa’s Bill of Rights begins with section
7(1): "The Bill of Rights is a cornerstone of democracy
in South Africa. It enshrines the rights of all people
in our country and affirms the democratic values of human
dignity, equality and freedom." And although
the right to development is not explicitly set out in the
constitution, the UN Declaration on the Right to Development
is accepted to be an international human rights standard that
informs social and economic rights. The following excerpt
of the preamble confirms an implicit acceptance of the right
to development within the Bill of Rights: "….development
is a comprehensive economic, social, cultural and political
process, which aims at the constant improvement of the well-being
of the entire population and of all individuals on the basis
of their active, free and meaningful participation in development
and in the fair distribution of benefits resulting therefrom…."
Without question, there is a duty and role for the private
sector vis a vis human rights respect, promotion, protection
and fulfillment. Given the need for a "concerted"
effort, how does responsibility/duty, for the realization
of South Africa’s human rights mandate, get shared across
the three major role players (government, private sector,
civil society)?
(d) Rights, Responsibilities/Duties and Accountabilities
Any discussion of human rights must include
corollary discussions of the duties/responsibilities that
accompany rights. And when duties are discussed, accountability
requirements, capacities and methodologies must also be addressed.
For example, every international human rights instrument that
South Africa ratifies has to be implemented nationally and
performance, vis a vis the human rights obligations, reported
to a UN committee. A prerequisite for effective accountability
(reporting) is that the duty bearer must have the necessary
and appropriate capacities for human rights observance with
a corollary condition that a lack of capacity should not be
used as an excuse for inaction. This condition is why most
of the socioeconomic rights in the Bill of Rights as well
as international instruments use words such as "progressive
realization" and "available resources". The
logic is that meaningful change has to happen over time so
where the government does not have all of the necessary capacity,
it can and should enlist the private sector as a duty bearer
and role player. The following table provides a summary of
some of the rights and their "internal qualifiers"
recognizing the reality of capacity limitations of the state
as a duty bearer:
s.26 HOUSING |
(1)
everyone has the right to have access to adequate housing
(2)
The state must take reasonable legislative and other
measures, within available resources, to achieve the
progressive realization of this right.
|
|
s.27 HEALTH CARE, FOOD, WATER AND
SOCIAL SECURITY |
(1)
Everyone has the right to have access to…
(a)health
care services, including reproductive health care; (b)
sufficient food and water; and (c) social security
(2)
The state must take reasonable legislative and other
measures….
|
|
s. 29 EDUCATION |
(1)
Everyone has the right…
(b)
..to further education which the state, through reasonable
measures, must make progressively available and accessible
|
An underlying assumption is that a duty bearer
e.g., government (the state), the private sector, or civil
society institutions/organizations, cannot really be held
accountable for non-fulfillment of rights if it does not have
the capacity to do so. So the first step in any effort to
establish an accountability mechanism is to assess the capacity
gaps of the duty bearers and to develop strategies to address
these. Where capacity exists, the challenge then becomes the
measurement and reporting of the quality and extent of rights
observance. This capacity assessment of the three major role
players in the South African context viz., government, the
private sector, and civil society, needs to be undertaken
and accountability mechanisms, consistent with human rights
principles such as people centeredness, developed.
Human Rights and Governance: Role Players
and their Duties
Government: as Facilitator and Enabler
i. The Principle of Co-operative Government
Without question, section 7(2) of the constitution
places the primary duty to respect, protect, promote and fulfill
the rights in the Bill of Rights on the state but what is
the state? The German author Jellinek asserts that the state
is made up of people, land and government. In South Africa,
government is constituted as national, provincial and local
spheres which are distinctive, interdependent and interrelated.
Underpinning these three spheres of government is the principle
of "co-operative government" which includes, amongst
others, the following:
41(1) All spheres of government and all organs
of state within each sphere must –
secure the well-being of the people of the
Republic
provide effective, transparent, accountable
and coherent government for the Republic..
co-operate with one another in mutual trust
and good faith..
The principle of co-operative government is
intended to guide the devolution of power and responsibility
(e.g., for human rights) across the three spheres of government.
Human Rights is certainly a responsibility that cuts across
all spheres of government. Five words from the above provisions
are, therefore, noteworthy – effective, coherent,
co-operate, transparent, and accountable, In many
respects these are the standards for co-operative government
against which the performance of all spheres of government
should be assessed/evaluated. Effective, coherence and co-operation
are about how human rights are observed viz., the government
mechanisms for vertically and horizontally integrated service
delivery for fulfillment of social and economic rights and
ensuring that civil and political rights are not violated
by any sphere of government Transparent and accountable are
intended to ensure that government action is relevant to the
development needs of citizens and that this is known to them
viz., they are active participants in defining their development
needs. This is where the notion of performance measurement
and accounting for social, economic, environmental, sustainable
development, etc. performance, in terms of citizens’
human rights, becomes critical.
Accounting requirements have in fact been entrenched
in the constitution through the institutions of democracy
set out in chapter nine of the constitution. For example,
all organs of state (e.g., spheres of government) are required
to annually report on (account for) their performance to the
South African Human Rights Commission. They must report their
actions vis a vis how they have progressively realized their
respective human rights duties. But this is not government
reporting directly to the citizens. Rather, the Human Rights
commission reports annually to the National Assembly. Localized
accountability frameworks are, therefore, needed to supplement
or as feeders to the macro or aggregate reporting that the
Human Rights Commission carries out. And it needs to be developed
within a local framework of governance viz., as the monitoring,
evaluation and reporting / accountability framework for local
social compacts between government, the private sector, and
civil society.
Provincial and Local Spheres of Government
The words used to set out provincial government
competencies (Chapter 6) and those of local government (chapter
7) are strikingly different. Provincial governments are defined
in terms of "functional areas of concurrent national
and provincial legislative competence" (schedule 4) and
"functional areas of exclusive provincial legislative
competence"(schedule 5). Emphasized is "legislative
competence". Local government, on the other hand, is
described in terms of what it exists to achieve – a clear
development mandate. This is set out in section 152 titled
"objects of local government" which include:
to provide democratic and accountable government
for local communities;
to ensure the provision of services to communities
in a sustainable manner;
to promote social and economic development;
to promote a safe and healthy environment;
and
to encourage the involvement of communities
and community organisations in the matters of local government
Social and economic development through effective
and efficient service delivery, within a safe and healthy
environment, informed by an active populace, is essentially
the mandate for local government. Again, however, the word
accountable appears. But given the possible
reach of section 8(2) of the constitution, e.g., application
of the Bill of Rights, to bind juristic persons, this duty
does not rest solely with local government. And since many
community organizations assume legal persona as non-governmental
organizations, as organs of society, the duties levied on
local government can and should be shared by such organizations.
Within this framework of duties and accountabilities, vis
a vis human rights and specifically the right to development,
the role of local government must change to includes facilitation
of a local level social compact. Only through a partnership
between itself, community organizations, private sector, and
other relevant role players, where local government acts as
the facilitator and enabler of such a partnership, can holistic
and integrated development result. The goal of such a social
compact would, therefore, be the fulfillment of the
objects of local government but through a local governance
framework. Such a compact would approximate the UNDP governance
model, with a new dimension that embeds human rights:
The UNDP’s definition of governance captures
the notion of a local social compact in that "governance
includes the state, but transcends it by taking in the private
sector and civil society. All three are critical for sustaining
human development. Government (the state) creates a conducive
political and legal environment. The private sector generates
jobs and income. And civil society facilitates political
and social interaction – mobilizing groups to participate
in economic, social and political activities." Each
actor has a specific role to play with specific responsibilities.
In differing degrees, each role player is enjoined to assume
a responsibility for human rights fulfillment vis a vis
sustainable human development at local level within a governance
framework. Governance can, therefore, be seen as
the exercise of economic, political and administrative authority
to manage a country’s affairs at all levels. It comprises
the mechanisms, processes and institutions through which
citizens and groups articulate their interests, exercise
their legal rights, meet their obligations and mediate their
differences. In fact, the notion of a social compact is
not new to South Africa
iii. Accountability and Local Level Democracy
A discussion of human rights and duties/responsibilities
is incomplete without a consideration of the accountability
requirements, methodologies, and benefits. A healthy democracy
is one where the elected is accountable to the populace. Accountability
should be most direct at local level where councilors (elected
representatives) and officials (administrators) interface
directly with the citizens of a community. It is about establishing
the mechanisms and processes to ensure that those in positions
of power and responsibility ‘answer’ for their actions.
The paths of accountability, however, will be different depending
on who is being held accountable. For example, accountability
within a municipality would generally be between the council
and administration and the community at large. But the operationalization
of accountability requires a more detailed setting up of pathways
so that there is vertical and horizontal and well as two way
accountability. The following diagram captures the main accountability
pathways for local sphere of government as the facilitator
and enabler of local governance:
Given the above pathways for accountability
it is clear that accountability is the flip side of human
rights and responsibilities. An approach open for local government
is to become the facilitator or enabler of the vertical and
horizontal partnerships for effective and efficient service
delivery since, ultimately, the development objects of local
government is to ensure that the basic rights of its citizens
within its catchment areas. Service delivery thus translated
into water provision, sanitation (e.g., refuge removal), access
to housing, etc., for which local government is responsible.
But responsibility does not mean the actual doing or providing
of such services. In fact, a role for civil society (NGOs)
and the private sector could be that of contractor for service
delivery. This kind of partnership is increasingly known as
"enablement" and has been promoted by the UN general
assembly. The benefit of enablement is that is takes the primary
burden for development off local government and shares it
with other role players. A South African case in point is
Ivory Park where individual households share the responsibility
and accountability for development by paying property rates,
service fees and other taxes, levies and duties imposed by
the municipality. Full enablement would be where the delivery
of services is contracted out to NGOs or the private sector
with clear accountability measures and processes.
The challenge of building and deepening democracy
can be met through sound frameworks and mechanisms for participation
and accountability. At the heart of the new system of local
government are the principles of participation and accountability
as set out in the policy framework white paper for local government.
Legislation and policy, such as the Municipal Structures Act
(1998) and the Municipal Systems Bill, detail the mechanisms
for accountability and participation. Strategies to facilitate
participation will focus on improving and maintaining channels
of communication; and forming strong partnerships between
municipalities and relevant stakeholders Central to participation
is the need for formal and informal communication channels
between a municipality and key stakeholders such as voters,
consumers of services, specialized participatory structures,
stakeholder groups, and traditional authorities. This is a
legislative mandate based on the Municipal Structures Act
which requires municipal councils to develop mechanisms to
consult the community and community organizations in performing
their functions and exercising their powers. And the flip
side to this participation mandate is an accountability requirement.
Policy and Legislative Framework for Local
Governance
The White Paper on Local Government (March 1998)
is the policy document setting out the framework for a democratic
system of local government. Prominent in the white paper is
the notion of "developmental local government" which
is defined as "local government committed to working
with citizens and groups within the community to find sustainable
ways to meet their social, economic and material needs and
improve the quality of their lives". The policy goes
on to say "developmental local government is intended
to have a major impact on the daily lives of South Africans.
Where municipalities do not develop their own strategies to
meet community needs and improve citizens’ quality of
life, national government may have to adopt a more prescriptive
approach towards municipal transformation." Beginning
with the constitution and the entrenchment of human rights,
the white paper affirms a human rights framework in commiting
government to take reasonable measures, within its available
resources, to ensure basic social and economic rights such
as access to adequate housing, health care, education, food,
water and social security. The paper notes, however, that
"the reality in (South African) cities, towns and rural
areas is far from (the constitutional) ideal. Many of (South
Africa’s) communities are still divided. Millions of
(South Africans) live in dire poverty, isolated from services
and opportunities." The challenge for future local developmental
government is to provide redress of past inequalities as well
as ensure the basic human rights of all citizens. This is
especially significant since local government is the service
delivery locus closest to citizens and their communities.
The white paper asserts that "developmental local government
must play a central role in representing (their) communities,
protecting human rights and meeting (citizens’) basic
needs. It must focus its efforts and resources on improving
the quality of life of communities, especially those members
and groups within communities that are most often marginalized
or excluded, such as women, disabled people and very poor
people." This mandate translates into four development
outcomes. As a blueprint, the white paper has guided the legislative
and policy development frameworks for local developmental
government. It gave rise to four relevant pieces of pending
and/or enacted legislation which provide a comprehensive framework
for local developmental government:
The Municipal Structures Act sets out the
framework/structure for local government. This includes
the types of municipalities, a division of functions and
powers between categories of municipalities, operating internal
systems and structures, etc. Essentially the structures
act provides the template for local government within which
processes for citizen participation must be embedded. The
Municipal Systems Bill complements the Structures Act and,
therefore, is most critical for citizen participation and
accountability because it requires municipal/local government
to develop and implement mechanisms and processes for citizen
participation. The Preamble sets the participatory tone
the municipal systems bill:
…….Whereas the system of local government
under apartheid failed dismally to meet the basic needs
of the majority of South Africans;
Whereas the Constitution of our non-racial
democracy enjoins local government not just to seek to provide
services to all our people but to be fundamentally developmental
in orientation;
Whereas there is a need to set out the core
principles, mechanisms and processes that give meaning to
developmental local government and to empower municipalities
to move progressively towards the social and economic upliftment
of communities and the provision of basic services to all
our people, and specifically the poor and the disadvantages;
Whereas a fundamental aspect of the new local
government system is the active engagement of communities
in the affairs of municipalities of which they are an integral
part, and in particular in planning, service delivery and
performance management;
Whereas the new system of local government
requires an efficient, effective and transparent local public
administration that conforms to constitutional principles;
Whereas there is a need to ensure financially
and economically viable municipalities;
Whereas there is a need to create a more harmonious
relationship between municipal councils, municipal administrations
and the local communities through the acknowledgement of
reciprocal rights and duties;………
Participation is pivotal in the Municipal
Systems Bill and is, therefore, set out in chapter four
titled "Community Participation". For purposes
of accountability, local government has three core duties
excerpts of which are presented below:
Development of culture of community participation
s.16(1) A municipality must develop a culture
of municipal governance that complements formal representative
government with a system of participatory governance….must
(b) contribute to building the capacity of
-
the local community to enable it to participate
in the affairs of the municipality; and
(ii) councillors and staff to foster community
participation…
Mechanisms, processes and procedures for community
participation
s.17(1)Participation by the local community
in the affairs of the municipality must take place..
(2) A municipality must establish appropriate
mechanisms, processes and procedures to enable the local
community to participate in the affairs of the municipality,
and must ….
(3) When establishing mechanisms….must
take into account the special needs of (disadvantaged)
Communication of information concerning community
participation
s.18(1) A municipality must communicate to its
community information concerning –
(a) the available mechanisms, processes and
procedures…
(b) the matters with regard to which community
participation is encouraged..
(c) the rights and duties of members of the
local community; and
(d) municipal governance, management and development
(b) Involving the Private Sector: Corporate
Citizenship and Accountability
The imposition of human rights duties on juristic
person’s (corporations) have tended to focus on the categories
of civil and political rights, economic (labour) and more
recently, environmental rights. But all categories of rights
have been included in the South African Bill of Rights which
incorporate democratic principles such as the rule of law,
human dignity, equality, fundamental freedoms, the universality
of human rights, and the inalienable and indivisible nature
of such rights. The significance of the above for juristic
persons operating in South Africa is that it highlights the
imminence of a shifting notion of "duty", as a philanthropic
corporate social responsibility viz., moral duty, to a legally
enforceable obligation.. Private sector/juristic persons,
especially multinational corporations, are notorious for actively
violating the human rights of the citizens of their host countries
– especially civil and political rights. It would seem
that the drafters of the South African constitution were informed
by this reality when they extended the application of the
Bill of Rights to juristic persons subject of course to the
nature of the right and the nature of the duty imposed by
the right. South African corporations operating nationally,
provincially, and locally have a legal duty
to respect, promote and protect human rights such as civil
and political rights, environmental rights, and labour rights.
This duty is legally enforceable through ordinary legislation.
Corporations also have a social, business, and moral
duty to fulfill social, economic and cultural rights.
The post Apartheid situation in South Africa
has seen the creation of a policy, legislative and institutional
environment that vehemently works towards the respect, protection,
fulfillment, and promotion of all categories of human rights.
With explicit recognition of juristic persons as the bearers
of certain rights and horizontal application of the bill of
rights, it would seem that time is the only factor in the
way of making a justifiable legal argument that places an
explicit and direct duty for human rights observance, especially
socioeconomic rights, on juristic persons. But as is the case
with the duties of government, such burdens are onerous and
performance needs to be measured within the "progressive
realization" and "to available resources" standard.
And performance vis a vis these standards must be accounted
for by both the state and the private sector through transparent
processes and systems set up to hold themselves accountable
to their constituencies. But the process of holding the state
and private sector accountable for human rights hinges on
a strong civil society that claims its rights, accepts corollary
responsibilities, and is capacitated to hold other duty bearers
accountable.
(c) Civil Society Participation
Duty Bearers and Rights Claimants
The argument has been made that sustainable
human development is possible only where human rights and
democracy prevail. It could be further argued that three essential
pillars of durable human development are human rights, popular
participation and good governance. Human rights and a model
for good local governance have already been discussed but
the notion of "popular participation" is still vague.
The United Nations Declaration on the Right to Development
says "the human person is the central subject of
development" and a UNDP Human Development Report
says "people are the real wealth of the nation".
When these assertions are combined with the Arusha Charter
on Popular Participation, which says that there is "no
doubt that at the heart of Africa’s development objectives
must lie the ultimate and overriding goal of human-centered
development, which seeks to broaden political participation,
building from a base of strong people’s organizations
and participatory local government…", a strong and
active civil society, collectively and individually, is critical
for sustainable human development. But what does this mean
for the realization of South Africa’s envisaged constitutional
democracy steeped in a culture of human rights? At local level,
it means a policy of people centered development: "In
meeting the objectives for the transformation of local government….the
aim of local government is to promote a people-centered process
of development. (In fact) the restructuring to create ‘wall-to-wall’
local government is an attempt to ensure that the level of
service delivery to communities is improved and that there
is a basic improvement in the quality of lives of all citizens….(by)
providing communities with an opportunity to dictate
how they want development to happen and voice what
priorities need to be addressed in their areas."
Within this context it is obvious that citizens
have a political duty to participate in matters
at local level regarding service delivery and holding local
decision makers accountable for sub-standard performance.
Citizens also bear a duty to participate and, therefore, engage
decision making in ways that are in the best interests of
all members of a community – a social duty.
There is also an ethical/moral duty to ensure
that the interests of the most vulnerable and disadvantaged
are represented. Finally, there is a legal duty
to responsibly enjoy rights so that the rights of others are
not infringed and to pay for the services they receive. Citizens
are not only the bearers of rights which they claim against
the state or, potentially, against the private sector, they
are also duty bearers with participation responsibilities
for making local governance a reality. The challenge then
becomes how to build the capacity for constructive citizen
engagement with the people-centered development agenda of
South Africa.
Capacity Building for Civil Society
Effective participation of the populace supported
by an appropriate devolution of powers from national to local
levels is certainly a prerequisite for people-centered development
grounded in an explicit framework of human rights and
"duties". A critical element for a strong
human rights culture is an informed and active citizen base
at community level. Hence, the inability of the weaker section
of the community to participate effectively in the structure
of local governance must be addressed if real governance is
to happen. In the South African context, community participation
inevitably translates into the building and/or strengthening
of individual and collective (CBOs and NGOs) capacity for
constructive engagement. If citizens are the bearers of human
rights and are to enjoy durable human development, it becomes
evident that they are also the bearers of specific duties.
In fact, "popular participation is key to realizing the
right to development and promoting democracy. As an aspect
of political action, participation is the organized effort
of powerless groups, communities and movements to win more
control of material resources and access to policy-making
structures." Government, especially at local level, cannot
be held accountable if citizens do not have the organizational/institutional
capacity as well as appropriate information. The legacy of
apartheid evidences wide gaps in the capacity of citizens
in rural and urban contexts.
Weak citizen participation can be attributed
to capacity deficits. This translates into an inability of
rights bearers (citizens) to claim their human rights. Capacity
deficits include the inability to hold decision makers accountable
for human rights observance through effective, efficient and
economical service delivery provided professionally and ethically.
The human rights discourse includes terms such as "claim
holders" and "duty bearers" but such language
remains esoteric unless practical capacities are built for
their operationalization. Critical is the need for accountability
systems, processes, and methodologies. In fact, "increased
accountability holds the key to improved effectiveness and
transparency of action and as such offers the potential ‘added
value’ flowing from the application of a rights-based
approach. Efforts to raise citizens’ awareness of their
human rights has been significant, through NGOs and university
affiliated legal and human rights centers. Still needed is
an emphasis on duties and the capacity to fulfill duties and
claim rights. Accountability capacity is obviously significant
in its absence which means that strategies for citizen participation
within local governance (i.e., a local level social compact),
based on human rights and specifically, the right to development,
are needed.
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