by Nontando Guwa

By October 2007, various local municipalities throughout the country had carried out IDP reviews as mandated in the Constitution of South Africa.

The Constitution requires local government to “structure and manage its administration, budgeting and planning processes to give priority to the basic needs of the community and to promote the social and economic development of the community”.

The Anti-Privatisation Forum argues that if local government disregards the needs of the community as a priority and the promotion of social and economic developments as basic human rights, then its actions/programmes are contrary to the Constitution and should be declared unconstitutional and invalid through due processes.

Human rights should therefore form a basis of local government planning and processes. However, this is not the case on the ground as revealed during a seminar hosted by Afesis-corplan in collaboration with the Public Service Accountability Monitor (PSAM) in mid-November.

The seminar, titled “Using Human Rights to assess Local Government Performance – A South African Perspective”, drew participants from civil society organisations (CSOs), academics, the public and some government institutions.

Speaking at the seminar, Nomalanga Mkhize of the PSAM introduced the Eastern Cape Human Rights Working Group chaired by Jonathan Walton of Black Sash in Grahamstown. The working group is a forum of CSOs interested in keeping alive the debate on human rights issues at local government level.

Mkhize reported that the forum was formed in response to a deafening silence on human rights violations at local government level, and it aims to advocate against these violations and to keep the debate going in order to influence positive change.

On its part, the state has put in place certain measures to ensure that local government adheres to the requirements of the Bill of Rights as stated in the Constitution.

The Human Rights Commission is one of the Chapter 9 institutions meant to oversee the protection, promotion and respect of human rights in South Africa. Speaking at the seminar, Lindelwa Mngcita from the Human Rights Commission (HRC) stated that the Commission has a specific mandate in terms of Section 183 (3) of the Constitution, to require relevant organs of state to provide the Commission with information on measures towards the realisation of the rights in the Bill of Rights.

A disappointing revelation was that of the 31 local municipalities and district municipalities that were requested to submit information to the HRC, only eight responded. Of more concern was the fact that it was not clear what measures the HRC had in place to force municipalities to conform. Even though participants were disappointed in the Commission, they noted that the Asmal Commission tasked by Parliament to look into the functioning of Chapter 9 institutions in SA gave a good report about the HRC.

There were, however, complaints to the effect that the HRC has somehow been sitting on the fence and leaning mostly on the side of government, and it has not strongly advocated for human rights protection, as it should.

The recent violent protests against poor service delivery clearly signify that the interface between service delivery and human rights is not well understood, and that somehow the HRC has failed the public in some way.

Dr Costa Gazi, a PAC Chief Sjambok and councillor at Buffalo City Municipality, stated that at council level, human rights were viewed as something far removed from the mundane duties around service delivery. He said the mentality of council was that human rights were about the poor while justice was largely viewed as something that the poor could not afford.

Under the circumstances, human rights and justice become a preserve for the rich who have the resources to put up a fight. Local government has been caught up in trying to raise revenue from rates and taxes, and it has in the process turned public goods into commodities.

The councillor lamented about public open spaces being sold to private developers to establish luxury facilities and golf courses for those who could afford to pay. “Water is supplied in a restricted way by pre-paid meters; sanitation is often nothing more than a pit latrine,” said Gazi.

These service delivery shortcomings impinge on the rights of the poor. The HRC is expected to intervene in such instances and play an active role in advocating for the rights of the poor. It was sad to note the capacity challenges that have been bedevilling the Eastern Cape HRC, where most of the staff have left for alternative jobs, leaving the outfit depleted.

Lindelwa Mngcita candidly agreed with the seminar participants that this exodus of staff impacted negatively on the ability of the Commission to execute its mandate effectively, at least in the short term, because new staff need time to get acquainted with internal institutional processes and systems.

There is a general assumption that when service delivery and decision making are closer to the community, the government’s efficiency and effectiveness with regard to socio-economic rights will improve. Speaking on human rights and decentralisation, Berita Kopolo from the University of Fort Hare stated that in South Africa, decentralisation had not yet yielded the positive results it was envisaged it would.

Instead it has further entrenched the power of the local elites, deepened inequality, exacerbated social divisions and possibly inhibited the realisation of socio-economic rights due to corruption. “Human rights are claims and entitlements that should be accorded everyone,” she remarked.

According to the United Nations High Commissioner for Human Rights (OHCHR), states should take appropriate means, including legislative measures, administrative, judicial, educational and other measures necessary to give meaning to the rights provided for.
There was an all-round appreciation of the fact that in the Eastern Cape, the human-rights debate should be kept alive, as there are still contentious human-rights issues to be discussed.

As noted by the HRC, housing is a big concern in the Eastern Cape, because while there has been a trend of under-spending by the Housing Department, many people have been on the housing waiting list for years. Corruption was also noted as a human-rights issue worth pursuing, especially in light of the recent report from the Public Service Commission.

Kopolo said: “You only have to look at the crisis at Frere Hospital as an example of human-rights concerns within the Health Department. It doesn’t matter what was said when by whom and how, even if half of what was said to be happening at Frere is true. It represents a serious failure by government. The school nutrition programme is plagued by immense corruption and is at the brink of collapse; this happens even though the programme offers the only meal of the day for most learners within the province.”

A documentary viewed at the seminar courtesy of the Open Democracy Advice Centre (ODAC) highlighted access to information as a human-rights issue. In this video ODAC presents two case studies of communities who engaged with local government seeking information. A major lesson to both local government and communities was that the rights as outlined in the Bill of Rights are rights for everyone, and should not be given only to the rich.

A key concern raised at the seminar was the growing statistics of violent crime in the country. Participants complained that criminals appeared to have an upper hand as far as human rights were concerned. The feeling was that criminals were seemingly afforded too many rights relative to those of their victims.

The case of Schabir Shaik was noted as a case in point, where the rich seem to be treated differently. Shaik, it was pointed out, had up to then spent most of his sentence in a private hospital and had hardly spent any time in jail.In general, criminals – and especially violent ones – seem to get away very lightly. The failure by the justice system to punish and protect law-abiding citizens was noted as a growing human-rights concern.

As a way forward, participants agreed to actively engage further with local government on service delivery and human rights. Forums such as the Eastern Cape Human Rights Working Group will be kept alive and strengthened. Key concerns and themes that need to be debated further will also be pursued vigorously by Afesis-corplan, PSAM and other civil society organisations.

The Local Government Transformer Dec 2007/Jan 2008