Living the dream or fighting reality?

By Chiedza Simbo

Can the rights-based approach really tackle all forms of exclusion?

Human rights-based approaches to development put the poor at the centre of development thereby giving them opportunities to act as agencies that identify their problems. The identification process empowers the poor to challenge the structures that work to their disadvantage. With rights-based approaches, human rights become yardsticks to formulate legal and moral arguments on how disadvantaged individuals ought to be treated. By equipping people with entitlements that they can claim, rights-based approaches divert focus from top-down approaches to development to bottom-up approaches. 

With rights-based approaches, advocacy organisations have found bases to push governments to be active by assessing and monitoring situations in countries in a visible, professional and authoritarian manner and submitting reports to organisations like the United Nations. However, the questions remain: First, can rights really tackle all forms of exclusion either socially, economically or religiously, by age, gender or otherwise? Secondly, facing under-development and poverty, especially in developing countries, do rights practically do anything for the poor? 

Despite the fact that people have rights, the Constitutional Court has noted resource constraints on the government’s budget and stated that the government can only do what it can afford. In other developing countries, despite having civil and political rights on paper, there is political and religious intolerance, people are beaten, tortured and sometimes charged with serious crimes for airing their views. 

Rights-based approaches seem to appear more useful in societies that promote liberal ideas, than in conservative societies were conservative cultures like paternalism weaken the impact of rights, especially for women and children. Rights also tend to resonate more with international than national ways of achieving justice. Following a rights-based approach, the international community prefers all nations to comply with international covenants and treaties, yet those demands sometimes trump reasonableness and prove too demanding on states, leading to non-compliance. 

In South Africa, the Constitutional Court refused the ‘minimum core standard’ stated by international law, upholding the need to use reasonableness in interpreting the Constitution. What was notable was that, while international standards were useful as bench-marks of what the state should achieve, the court held that the state could not focus on compliance with international laws without giving regard to reasonableness. 

Indeed, it is commendable that, owing to rights-based approaches, various issues that affect human rights are now covered by human rights discourses. Conventions like the Convention on the Rights of the Child give children entitlements, politically, economically and socially. Stating that children have a right to free education is empowering and forms bases of claim rather than a mere reliance on service-delivery by the state. 

However, the problem arises when the socially excluded have ‘multiple deprivations’ and are often forced by the lack of resources on the part of governments, to choose the right to claim first, while the truth is: All rights are equally relevant and interdependent. Claiming rights also require the poor to have resources and to be mobilised, which is not an easy process. Deprived people often fail to see their deprivations as their mentalities adjust to their situations making constitutions futile. More so, with the overwhelming demands for socio-economic rights it is not clear whose rights should be heard first, whether it is the most deprived, who are mostly women and children, the loudest voice or international pressure.

Sad but true, rights-based approaches derive strength from the law sending messages that successful claims in court are synonymous with redress of the conditions of the poor, which is not entirely correct. In Government of the Republic of South Africa and Others v Grootboom and Others 2000 (11) BCLR 1169 (CC), the Constitutional Court stated that Mrs Grootboom had a right to access to adequate housing from the government but, in fact, she died without a house. What she had was just ‘access to the right’ not the house itself. 

Rights in theory are therefore different from rights in practice. Ratification of international laws has never led to a dramatic change in situations of poor countries but usually states merely reform their laws to meet international standards. In that case, conformity with international laws might look synonymous to development, but it is not transformation.

Also, rights-based approaches are weak in protecting the rights of migrants who do not have citizenship status as they are not often understood to be covered by a bill of rights. Young adults are usually depicted as a threat against the human rights of others and abused on such basis. Young people are executed by the police and nothing is done, even by international bodies. Poor people are misconceived to be lazy so their rights, which are often seriously protected, are only those that command sympathy, like rape and trafficking of children. It is therefore important for lawyers to realise that rights-based approaches are useful in pointing out issues that need redress but they need to be complimented by other development approaches as they do not completely solve the problems they identify.

Ways in which the rights-based theory can accommodate its criticisms 
Challenging ‘invisible power’ 

Abuse or total negation of rights is usually due to structural and relational factors that marginalise people, either economically, socially, culturally or otherwise. Embedded power relations become a source of injustice. What is needed is for development agents to challenge the power relations and not to merely focus on goals. 

The ‘invisible power’ affects the way individuals regard their dignity and self-worth. Those who feel excluded shun from asserting their rights. What is needed is a paradigm shift that challenges ‘invisible power’ and the advances ‘power within’. With the recognition of the problems of the balance of power, social movements have the goal to challenge the distribution and conceptions about power rather than to seize power. 

This is explained by programmes that promote education, leadership development, common goals, awareness and action both politically and legally. To help governments meet their obligations, it is necessary to socially and morally empower the excluded so that they are confident to investigate why governments fail to deliver their legal rights and to ask governments for their future plans.

Advancing participation strategies 

Issues of domestic violence and the rights of woman have shown that the law on its own cannot guarantee individual freedom. Courts, the police or the amendment of substantive law cannot do much without challenging cultural and religious inequalities. What is needed in the process of development is participation of those deprived with one of the outcomes as their empowerment. It is often noted that, due to powerlessness, woman blame themselves for their abuse, and therefore, to create change for excluded populations, participation and rights strategies need to be grounded in broad visions and processes of empowerment that is both an individual personal (private) process, collective (organisational) and political (public) process. Individuals need to be empowered to confront and solve their problems as individuals and communities. Legal education through legal aid clinics is important with a mixture of rights and participatory methods that focus on developing leadership skills, transforming personal self-esteem, influencing policy and political change. 

Demanding accountability

The marginalised should be educated on how to demand accountability from those with the obligation to deliver. Depending on context people should be able to approach the government to ensure that rights are realised. Capacity building will help in educating people about complaint mechanisms, and remedies even at international level.

Conclusion

Rights-based approaches to development inform the socially excluded about their entitlements. The state is given the primary obligation to alleviate deprivations through devising methods to realise the rights of excluded people. 

The state is also obliged to respect the rule of law and good governance. However, enhancing participation with the object to promote empowerment is essential for the success of rights-based approaches.

Chiedza Simbo LLB (University of Zimbabwe) LLM (Commercial Law) LLM (Social Justice) (UCT) is the national director of the Zimbabwe Women Lawyers Association.