1. Monitoring the fulfilment of socio-economic rights in South Africa
National standards and indicators in fulfilling economic, social and cultural rights: Sources, strategies and challenges
Monitoring the fulfilment of socio-economic rights in South Africa
By: Lilian Chenwi
Disampaikan dalam Seminar dan Lokakarya Nasional “Menuju Perlindungan dan Pemantauan yang Efektif Hak-hak Ekonomi, Sosial dan Budaya di Indonesia,” diselenggarakan oleh PUSHAM UII, bekerjasama dengan Noewegian Centre for Human Rights (NCHR) Universitas Oslo Norwegia April 2007.

2. Introduction Importance of monitoring human rights
To avoid rights ending up as mere paper rights
Sources of standards and indicators for monitoring SERs
Statistical data
Qualitative standards emanating from constitutional provisions, laws, policies and court judgments

3. Reasonableness review standard
Derived from the state’s constitutional duty.
Take reasonable legislative & other measures within available resources to achieve the progressive realisation of SERs
In Grootboom, the Court set out indicators to measure what constitutes a reasonable measure.
The question to be addressed by a court – is whether the measures adopted are reasonable
Not whether other more desirable or favourable measures could have been adopted or whether public money could have been well spent.

4. The basic standards Be comprehensive, coherent & coordinated
Not exhaustive – a changing one – is context sensitive & applied on a case-by-case basis
Be comprehensive, coherent & coordinated
Grootboom – measures not sufficiently comprehensive to be reasonable
Set out responsibilities of the different spheres of government
Be reasonably conceived and reasonably implemented
Obligations of conduct & obligations of result
Kutumela – social grant measure that existed on paper & not in practice

5. Basic standards cont. Be balanced and flexible
Capable of responding to short-, medium- & long-term needs
TAC – inflexible programme
Make available financial and human resources
Kutumela & TAC raise this requirement
Be transparent
Standard added in the TAC case

6. Criticisms - reasonableness standard
Fails to recognise direct individual positive rights
Creates difficulties for the enforcement of SERS
Burden of proof on applicants

7. Advantages of the standard
It addresses separation of powers concerns
State is given room to formulate appropriate policies
It avoids closure & creates the on-going possibility of challenging socio-economic deprivations in the light of changing contexts
Good benchmark against which the state’s performance can be measured

8. SAHRC – monitoring process
Mandate – s184 of the Constitution
Each year, the Human Rights Commission must require relevant organs of state to provide the Commission with information on the measures that they have taken towards the realisation of the rights in the Bill of rights concerning housing, health care, food, water, social security, education and the environment.
Requests information on fulfilment of SERs
Compiles a report – this is not a constitutional obligation

9. SAHRC cont.
Approach – Establishing a foundation for its monitoring role:
Workshop – guiding principles & plan of action
Survey on public perceptions & publi hearings - development of sources of information
Establishment of ESRs unit
Progressive realisation as opposed to violations approach
Strategies for the collection and verification of information
Questionnaires – ‘protocols’
Research
Fieldwork
Consultation workshops with affected communities

10. SAHRC cont. Indicators and benchmarks Quantitative & qualitative
- Statistics
- Benchmarks (targets) set by respective government departments
- reasonableness standard
- Millennium Development Goals (MDGs)
- specific indicators derived from general comments, courts’ interpretations of SERs, laws and policies

11. The major headings of the protocols
New policies, strategies & legislation
Progress in implementing key programmes, sub-programmes and projects
Communication strategies – relating to the dissemination of information to the public about the content of the right and how to aces the right
Assessment of actual outcomes in relation to constitutional obligations (s7(2)) – how adopted measures met the obligations to respect, protect, promote and fulfil

12. Protocol headings cont.
Key challenges faced in aiming to achieve progressive realisation
Indicators used for assessing delivery performance
Monitoring and evaluation (M&E)
Mechanisms or systems used to monitor and evaluate progressive realisation of the right.
Key findings of any M&E exercises or studies conducted.
Recommendations for policy o strategy or legislative changes that could b necessary for the subsequent year; and reasons why there’s need for this change.

13. Reporting elements for each key programme or project
Political and legal mandate, including participatory processes
Objectives
Intended beneficiaries and vulnerable groups
Strategic planning targets set
Budget allocation
Targets achieved
Implementation difficulties
Actual expenditure
Audited expenditure – over/under-exp.

14. Key challenges to monitoring
Lack of a precedent at the domestic level
Indicators of progress
use of statistics problematic; limited reliance on MDGs
Limited content of protocols
limited reliance on reasonableness standard; no follow up questions or questions on implementation of court orders
Low protocol response rates from organs of state / delays
Inaccessibility of protocol responses to the public
Limited or no collaboration between the Commission and NGOs