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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:

PREAMBLE AFFIRMATIONS
CORRESPONDING HUMAN RIGHTS
democratic values s.7(1) Human dignity; Equality; Freedom
fundamental human rights / social justice
s.10 Human Dignity; s.11 Life; s.24 Environment; s.25 Property; s.26 Housing;

s.27 Health care, food, water and social security; s.29 Education; s.16 expression; s.20 Citizenship;

open society s.32 Access to information; s.33 Just administrative action
government based on will of people s.19 Political rights; s.18 Freedom of association; s.17 assembly, demonstrations, picket and petition;
equal protection by law
s.9 Equality; s.12 Freedom and security of the person; s.23 Labour relations;

s.28 Children; s.34 Access to courts; s.35 Arrested, detained and accused persons;

improved quality of life
improved quality of life
free potential of each person s.13 Slavery, servitude and forced labour; s.22 freedom of trade, occupation and profession;


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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