To what extent could intergovernmental relations enhance the gradual effective realisation of socio economic rights?

Transcription

1 To what extent could intergovernmental relations enhance the gradual effective realisation of socio economic rights? A focus on access to housing and water. Jabu Sindane 14 October 2011 Introduction The examination of the above question will be as follows; the first part will unpack the concept of intergovernmental relations and its application internationally and within the South African context. The second part will be a reflection on the constitutional provisions regarding the socio economic rights, particularly access to housing and water and the relevant legislation that was meant to actualise the two socio economic rights. The paper will also reflect on two judgements from the Constitutional Court which are to do with access to housing and access to water. Furthermore, the paper will reflect on some observations on the gradual realisation of the socio economic rights in general. The paper will further reflect on the key departments that are relevant to the discussion and possible gaps in the potential effective, gradual realisation of socio economic rights. Lastly, the paper will make some intergovernmental relations proposals that could enhance the gradual realisation of the socio economic rights (access to housing and access to water). What is Intergovernmental Relations? Generally, there is more than one definition of what a particular concept represents. One of the reasons for this being that the application of concepts differs from country to country. For the purposes of this discussion, the following definition is proposed, namely that, intergovernmental relations is an important body of activities or interactions occurring between governmental units of all types and levels within a government system (Elazar 1987: 14). Context of Intergovernmental Relations Intergovernmental relations can be seen as a universal phenomenon. If seen in this light, then, intergovernmental relations are to be found wherever two or more governments interact in the development and execution of public policies and programmes (Elazar 1987:16). Much as structures and processes of intergovernmental relations are predominantly found in countries with federal characteristics, they are also found in countries with unitary systems such as Japan and the United Kingdom (Watts 1998:3). What makes it essential that the relations between the different levels/spheres of government remain good for effective governance is the division of power between them. Cooperation, therefore, becomes necessary in order to ensure that co-ordinated and complete administration of the divided fields is attained (Wheare 1963:227). In countries with federal characteristics, it is inevitable that there will be overlaps and interdependence in the exercise by governments of their powers that generally require the different 1

2 orders of government to treat each other as partners in order to minimise conflict and to create an environment of adapting to changing circumstances (Watts 1996:51). Intergovernmental relations in every country with substantial federal characteristics have both vertical and horizontal dimensions (Watts 1996:53). That is, in addition to relations between the national government and the constituent unit governments, there are also inter-unit relations. Intergovernmental relations in countries such as India, Malaysia, Australia and the United States have provided a degree of flexibility and scope for co-operation in areas where the Constitution provides for concurrent jurisdiction. South Africa s system of government falls into this category of countries. Therefore, since by definition, intergovernmental relations refer to relations between regional governments and national government, as well as between the different regional governments, the importance of provinces (constituent units) is self-evident. Constituent units or regional governments are also known as states or provinces in other countries. The South African context of Intergovernmental Relations The South African unitary constitution provides for not less than eighteen federal characteristics, all of which define the relations between the national and provincial governments. These include a written constitution, which is regarded by a number of international scholars as a prerequisite for any state with substantial federal characteristics; the process for amending the constitution; a bicameral parliament, composed of the National Assembly and the National Council of Provinces; constitutional recognition of regional governments, i.e. provinces in the South African case; Judicial arbitration or the Constitutional Court which presides over constitutional matters; self-rule by provinces (also contained in Schedule 5 of the South African Constitution, i.e. exclusive functions for provinces) and shared rule/responsibilities between the provinces and the national government which are predominantly contained in Schedule 4; the role of the National Council of Provinces which is mainly to ensure that the provincial interests are taken into account; the provision for the autonomy of provinces, s40(1) of the South African Constitution; several provisions for fiscal autonomy of provinces; separate legislative authority for provinces; permanence of provincial boundaries; the right of every province to write their own constitution; etc. National Provincial relations All of the above provisions put emphasis on the role of provincial governments. The number of forums between the provinces and the national government demonstrates further importance. They include the Presidents Co-ordinating Council, the various forums between line-function Ministers and their provincial counterparts, the Members of Executive Council generally referred to as MINMECs (Minister-Member of Executive Council), the Budget Council, and the various technical forums that support the respective political forums. Even though provincial finances is composed of less than 3% of own revenue of the total provincial revenue (Budget Review 2002:155-6; 162), the role of national government is nevertheless increasingly shifting towards a focus on policy making and monitoring, thus creating space for provincial and local government to be more involved in the implementation of government programmes or service delivery. The evidence of this is the increased provincial budget spending which is the largest (Intergovernmental Fiscal Review 2001). Provinces are for instance, responsible 2

3 for the implementation of major social services such as school education, health, social grants, welfare services, housing and provincial roads. The importance of the role of provinces is further recognised in that provinces and municipalities are responsible for the bulk of the government s pro-poor programmes (Budget Review 2002:151). A further example of the significance of the role of provinces was their involvement in the World Summit on Sustainable Development and other similar events both at national and international levels. Socio economic rights One of the main purposes of socio economic rights was to address the developmental challenges of the country that were caused by the policies of the past, i.e. pre1994 policies, that have resulted in backlogs in basic service delivery. The founding members of the constitution found it appropriate to include the socio economic rights in the constitution. Constitutional provisions Since the focus of this discussion paper is on housing and water, reference will therefore only be made to the constitutional provisions that are relevant to the two above areas. Section 26 provides that; (1) Everyone has the right to have access to adequate housing (2) The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right (3) No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions. Section 27 provides that; (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, including, if they are unable to support themselves and their dependants appropriate social assistance (2) The state must take reasonable legislative and other measures within its available resources to achieve the progressive realisation of each of these rights (3) No one may be refused emergency medical treatment. 3

4 Legislature National Housing Act 107 of Section 1 of the Housing Act defines the Housing development as; The establishment and maintenance of habitable, stable and sustainable public and private residential environments to ensure viable households and communities in areas allowing convenient access to economic opportunities, and to health, educational and social amenities in which all citizens and permanent residents of the Republic will, on a progressive basis, have access to (a) Permanent residential structures with secure tenure, ensuring internal and external privacy and providing adequate protection against the elements; and (b) Potable water, adequate sanitary facilities and domestic energy supply... Section 2 (1) of the Act sets out the general principles that are binding to national, provincial and local spheres of government. It provides as follows that, all levels of government must; (a) Give priority to the needs of the poor in respect of housing development; (b) Consult meaningfully with individuals and communities affected by housing development; (c) Ensure that housing development- (i) (ii) (iii) (iv) Provides as wide a choice of housing and tenure options as is reasonably possible; Is economically, fiscally, socially and financial affordable and sustainable; Is based on integrated development planning; and is administered in a transparent, accountable and equitable manner, and upholds the practice of good governance Section 3 provides for the functions of the national government in the form of the National Department of Housing ; section 7 provides for the functions of provincial government in the form of provincial departments of housing, section 9 of the Act provides for the role and functions of Local Government. Water Services Act, 108 of 1997 Section 3 of the Water Services Act provides that; (1) Everyone has a right of access to basic water supply and basic sanitation, (2) Every water services institution must take reasonable measures to realise these rights, (3) Every water services authority must, in its water services development plan provide for measures to realise these rights. 4

5 Section 11 of the Water Services Act provides that every water services authority has a duty to all consumers in its area of jurisdiction to progressively ensure efficient, affordable, economical and sustainable access to water services. Case studies Case Study 1 The Grootboom Case CCT 11/00. In a summarized form, the case involved community members (510 children and 390 adults) who were evicted from their informal homes that were built on a private land which was targeted for formal low-cost housing. They approached the Cape of Good Hope High Court for an order requiring government to provide them with adequate basic shelter or housing until they obtained permanent accommodation and were granted certain relief. All three spheres of government responsible for housing, were ordered to provide the children and their parents with shelter, the bare minimum thereof would be tents, portable latrines and a regular supply of water. Grootboom v Oostenberg Municipality and Others 2000 (3) BCLR 277 (c). Government challenged the correctness of the order. The three spheres of government were; The Government of the Republic of South Africa (in the form of The Department of Housing then, but the Department of Human Settlements now; The Premier of the Province of the Western Cape; Cape Metropolitan Council and the Oostenberg Municipality The Constitutional Court made the following order; 1. The appeal is allowed in part. 2. The order of the Cape of Good Hope High Court is set aside and the following is substituted for it: It is declared that: (a) Section 26(2) of the Constitution requires the state to devise and implement within its available resources a comprehensive and coordinated programme progressively to realise the right of access to adequate housing. (b) The programme must include reasonable measures such as, but not necessarily limited to, those contemplated in the Accelerated Managed Land Settlement Programme, to provide relief for people who have no access to land, no roof over their heads, and who are living in intolerable conditions or crisis situations. (c) As at the date of the launch of this application, the state housing programme in the area of the Cape Metropolitan Council fell short of compliance with the requirements in paragraph (b), in that it failed to make reasonable provision within its available resources for people in the Cape Metropolitan area with no access to land, no roof over their heads, and who were living in intolerable conditions or crisis situations. 3. There is no order as to costs. 5

6 The judgement was made by Justice J Yacoob and all other judges of the Constitutional Court concurred with the judgement. Some of the remarks that were made by Judge Yacoob that are relevant to intergovernmental relations are the following: a. The Judgement must not be understood as approving any practice of land invasion for the purpose of coercing the state structure into providing housing on a preferential basis to those who participate in any exercise of this kind. b. This case shows the desperation of hundreds of thousands of people living in deplorable conditions throughout the country. The Constitution obliges the state to act positively to ameliorate these conditions. c. Neither section 26 nor section 28 entitles the respondents to claim shelter or housing immediately upon demand. d. The order requires the state to act to meet the obligations imposed upon it by section 26(2) of the Constitution. This includes the obligation to devise, fund, implement and supervise measures to provide relief to those in desperate need. In the light of the above remarks by Judge Yacoob, particularly on item (a) above, it is worth making the following observation that was reported recently. The Sowetan newspaper on the 13 September 2011, reported that more or less 350 families who were evicted from two plots in Mooiplaats near Atteridgeville, outside Pretoria, were expected to approach the Constitutional Court that very day. The plots fall under the jurisdiction of the City of Tshwane. According to the report,...the owner of one of the plots and the municipality were expected to argue that providing alternative accommodation is not their responsibility but that of the provincial and national government. Sowetan, Tuesday September Case study 2 Mazibuko v. City of Johannesburg (the Phiri case) It was decided 08 October Brief background In trying to address the issue of water wastage through water leaks and high consumption which together constituted roughly a total consumption of 67 kilolitres per household, and added to this high consumption was the low levels of payment for municipal services that included water, payment was less than 10%, the City of Johannesburg, through its entity, Joburg Water embarked on a project called Operation Gcin amanzi. Two areas of the project were challenged by the residents of Phiri, a substructure of the Soweto Township, which was selected for piloting the project. These areas were, the installation of prepaid meters and the supply of 6 kilolitres of water per household per month. 6

7 The contestation was the rejection of the installation of the prepaid meters and the supply of 10 kilolitres of water per household per month. Judgement 1. The decision of the first respondent and /or the second respondent to limit the free basic water supply to the residents of Phiri to 25 litres per person per day or 6kl per household per month is reviewed and set aside. 2. It is declared; (a) That 42 litres of water per Phiri resident per day would constitute sufficient water in terms of s27(1) of the Constitution. (b) That the first respondent is, to the extent that it is in terms of s27(1) of the Constitution reasonable to do so, having regard to its available resources and other relevant considerations, obliged to provide 42 litres of free water to each Phiri resident who cannot afford to pay for such water. 3. The first and second respondents are ordered to reconsider and reformulate their free water policy in the light of the preceding paragraphs of this order. 4. Pending the reformulation of their free water policy the first and second respondents are ordered to provide each account holder in Phiri who is registered with the first respondents as an indigent with 42 litres of free water per day per member of his or her household. 5. It is declared that the prepayment water meters used in Phiri Township in respect of water services level 3 consumers are unlawful. 6. The order in paragraph 5 is suspended for a period of two years in order to enable the first respondent to legalise the use of prepayment meters insofar as it may be possible to do so. 7. The respondents are jointly and severally ordered to pay the costs. Some comments that were made by Judge JA Streicher include the following; Although section 27(1) provides that everyone has the right to sufficient water everyone does not have a claim for the immediate fulfilment of that right. A local authority such as the City is required only to act reasonably and to progressively fulfil its obligation to ensure that everyone has access to sufficient water. Observations regarding the gradual realisation of socio economic rights Some factors that were identified as working against sufficient resources being allocated to fulfil socio-economic rights include the following: (1) Lack of agreement about the types and levels of goods and services that the state should finance to give effect to socio-economic rights. 7

8 (2) Not enough political will to support the constitutional value and promise of organising resource allocation and use in the country in a way that prioritises the basic needs and rights of the most vulnerable groups. (3) Insufficient planning, budgeting and implementation capacity particularly at local government level to manage larger socio-economic rights programme budgets. (4) Under spending of funds allocated for social services. (For example, the Budgetary Allocation of the National Department of Housing for the financial year 2000/2001 was R3.4million, but only R1.7million was spent in the same financial year. Mamba p56 (5) Inadequate pressure on government by other role players with duties to promote resource use for socio-economic rights, including Parliament and civil society organisations. (Khoza, Sibonile (ed) 2007) (6) Failure to appreciate and therefore failure to effectively utilize the processes that are to do with the compilation and the implementation of the Integrated Development Plans. Relevant government departments The primary departments that are of interest to this discussion are the Department of Human Settlements which is responsible for housing, the Department of Water Affairs which is responsible for raw water, legislation and regulation of water and the Department of Justice and Constitutional Development which is responsible for all human rights including the socio economic rights. Two further departments that are key players in the arena of socio economic rights are the National Department of Finance, for the obvious reason that it has the last say in the budget allocations to all departments and the Department of Cooperative Governance and Traditional Affairs whose main responsibility is the effective functioning of provinces and local government. This is also the department that is responsible for the promotion of intergovernmental relations, hence its name. Powers and functions The powers and functions that are being attended to in this paper are only those of the three departments that are predominantly relevant to the discussion of intergovernmental relations and socio economic rights; is the National Department of Human Settlements, which has a concurrent function, that is shared with the provincial departments of Human Settlements. The second department that will be considered is the Department of Water Affairs, which is responsible for policy and regulation, including being the guardian of raw water, i.e. the rivers, dams, canals, etc. Constitutionally, the role of provinces is not provided for in the water sector. The local government sphere of government, constitutionally, is responsible for water services and sanitation. In general, Water Services refers to the supply of domestic water, i.e. drinking water. The third department that is relevant to this discussion is the Department of Justice and Constitutional Development, due to the fact that this is the department that is the custodian of socio economic rights and it is the department with overall responsibility for all the courts including the Constitutional Court. The function of justice is an exclusive national function. 8

9 Structural problems An immediate observation regarding the powers and functions in the above functional areas is, firstly the gap in the role of local government in the provision of housing. Local government is only responsible for building regulations. One of the immediate implications for intergovernmental relations is that when the planning for the provision of housing is done by the national and provincial governments through the Minmec (Minister and Members of Executive Councils responsible for human settlements), the local government sphere is absent and yet, this is the sphere where everyone should have access to housing. With regard to the water function, structurally, the provinces are absent when the municipalities are doing their planning regarding the provision of drinking water and water related issues such as sanitation. The interaction regarding water and sanitation takes place mainly between the national department of water affairs and municipalities. The Department of Justice and Constitutional Development on the other hand, has an exclusive national jurisdiction in as far as all matters of justice and constitutional development are concerned. Furthermore, judgements that come from the Constitutional Court, have generally, a national impact. For instance, even though a particular case that is before the Constitutional Court comes from a local community or pressure group, the outcome of that case, has national implications and or application. What is even more important is that the Constitutional Court is the highest court in the land, its decisions cannot be changed by any other court. An argument can therefore be made that even though various Constitutional Court Judges have from time to time stated in their findings that the role of the Constitutional Court is not to make policy, however, the impact of some of their judgements does influence if not change policy. This makes it imperative that all spheres of government should be aware of all the judgements that are made at the Constitutional Court especially those that have policy implications. The above cases are good examples of judgements that have policy implications. For instance, there is little ambiguity in the following directive which is quoted from the judgement of the Phiri case above;...the first and second respondents (i.e. The City of Johannesburg and Joburg Water) are ordered to reconsider and reformulate their free water policy in the light of the preceding paragraphs of this order. Further observations regarding structural problems Much as there are structures of intergovernmental relations that exist at national level, for example, regarding matters of human settlements, there is a Minmec structure, this is where the national Minister of Human Settlements, as per schedule, meets all the provincial Members of Executive Councils responsible for human settlements, the Department of Justice and Constitutional Development does not sit on that structure. It will therefore take a special effort from the Department of Justice and Constitutional Development to ask to be invited to the Minmec of Human Settlement to go and talk about the Constitutional Court judgements or the implications thereof for that department. Let us for one moment imagine that this would happen, the two other important structures would be absent, namely the National Treasury and local government. 9

10 The next nearest igr structure at the national level that could bring most relevant government units is the Presidents Coordination Council (PCC). The PCC is convened by the President of the country, however, it is coordinated by the Department of Cooperative governance and Traditional Affairs. It is attended by the President, few national departments, all the Provincial Premiers and the South African Local Government Association. Most national departments such as the Human Settlements, the Department of Water Affairs and the Department of Justice and Constitutional Development can only attend the PCC per invitation. With regard to the function of the Department of Water Affairs, there is no formal intergovernmental relations structure between the national department and provinces. The department therefore works through its regional offices to liaise with municipalities that have a status of being a Water Services Authority, this could be a local municipality, such as in Mpumalanga Province where all the local municipalities are Water Services Authorities, or in the KwaZulu Natal Province where most District Municipalities are Water Services Authorities. The next best intergovernmental relations forum and yet remains underutilised is the Integrated Development Planning processes. National policy dictates that all municipalities should have five year plans called Integrated Development Plans (IDP). It further dictates that all departments, national and provincial, and all state institutions/organs, should participate in the drafting of the IDPs, in other words, they should participate in the processes of the IDPs. To my knowledge, very few national departments with exclusive national powers have bothered to do so. General observations Clearly, if the gradual realisation of socio economic rights is to be enhanced, this will need to happen at a local government level. In other words, should n t everyone try to work through local government in order to enhance and finally achieve the gradual realisation of socio economic rights? However, most people know that local government alone will not be in a position to achieve the realisation of the socio economic rights, for a number of reasons. Lack of finance being one of the main reasons. A number of local municipalities are practically insolvent. The South African Local Government Chronicle (p12) reported in the February 2011 publication that nationally, the municipalities are owed, R37,7 billion by households, while government debt to the municipalities was R3.4 billion. The same report said the country s metropolitan municipalities were owed R35.4 billion, an increase of R3.9 billion. The biggest annual percentage growth was in the City of Johannesburg. (The South African Local Government Chronicle February 2011) Other reasons include the well documented lack of capacity of many municipalities, and lack of integrated planning by all three spheres of government, lack of coordination between departments, sometimes within departments at all spheres of government, etc. 10

11 Possible igr response to the structural problems With regard to the Department of Human Settlements, it might be a good idea to create a space for the participation of local government at their Minmec rather than just relying on the participation of local government through national summits and IDP processes only, because the impact of that participation is not very effective. That participation could be in a form of representation by SALGA. It could also be beneficial to all the role players at Minmec if the issue of socio economic rights could be part of the agenda all the time, for, this could immediately call for the invitation of the Department of Justice and Constitutional Development to attend the Minmec of Human Settlements. A further possibility is the exploration of participation of the various role players and some stakeholders that are concerned with the gradual realisation of socio economic rights. The same argument applies to the delivery forums of other departments such as the Department of Water Affairs and the Department of Justice and Constitutional Development. Furthermore, all departments that are responsible the gradual realisation of socio-economic rights, but the Department of Justice and Constitutional Development, could hold bi-annual summits, in order to reflect on the progress made in the gradual realisation of the socio economic rights and the judgements that have come from the Constitutional Courts. The role of ngo s and/ or tertiary training institutions. Tertiary training institutions and non-governmental organisations (this includes any organ of civil society) could, and some might be doing that, bring judgements regarding the realisation of the socio economic rights to the attention of the local sphere of government in their own municipal areas. For instance, to what extent is a judgement in the case of the Phiri residents that was discussed above applicable to other local municipalities with waterborne sewerage systems? These organisations could bring the implications of the judgements from the Constitutional Court to other relevant government structures such as the Budget Council/Forum, other structures such as the Financial and Fiscal Commission and to the attention of policy makers in general. Expose to all role players the different available forums for intergovernmental relations, and feed such forums with the latest judgements. For instance, to what extent is the local sphere of government aware or participating in structures that are meant to promote better coordination in service delivery such as the Delivery forums that emanate from the Delivery Agreements that have been signed by the President and the different Ministers. Tertiary training institutions in particular could serve as a research support to the local sphere of government in documenting the observations of the practicality of the implementations of some of the judgements that came from the Constitutional Court. Non-governmental organisations and universities, through faculties of public administration or public services, could assist in doing budget analysis and identifying areas of weaknesses in the processes of spending, or in dealing with under spending in the area of socioeconomic rights for local government. 11

12 Conclusion Targeted capacity building programmes on socio economic rights at local government level so that the local sphere of government could be better empowered to take up the socio economic rights issues up with the rest of government including the National Assembly through the Portfolio Committees and the National Council of Provinces through the relevant Select Committee. What the paper tried to do was to put the concept of intergovernmental relations within the international context and sought to argue that South Africa is a legitimate player in that space given the structure of government. It also made reference to the provisions of the constitution that deal with socio economic rights, particularly in the area of access to housing and water. Reference was also made to the different pieces of legislation that was passed in order to gradually achieve the realisation of those socio economic rights. An examination of the two case studies exposed the fact that some of the judgements that come from the Constitutional Court does not only have budgetary implications but also that they can have an impact on government policies. A further discussion demonstrated through the eyes of some observers that the gradual realisation of socio economic rights is painfully slow. The paper further explored the effectiveness of existing intergovernmental relations structures and to what extent they were in a position to enhance the gradual realisation of the socio economic rights. A number of recommendations were made regarding how certain areas could be strengthened by the participation of non-governmental organisations and tertiary training institutions, especially the area of intergovernmental relations in order to enhance the gradual realisation of socio economic rights. Indeed, it is in the nature of intergovernmental relations to keep on doing a reflection on existing structures, sometimes there is a need to do away with old structures and on some occasions new structures such as the Delivery Forums are established or introduced. References: Act 108 of 1996: The Constitution of the Republic of South Africa, Act 108 of 1997 Water Services Act Grootboom v Oostenberg Municipality and Others 2000 (3) BCLR 277 (c) Judgement in the Constitutional Court Grootboom Case CCT 11/00 Budget Review Elazar, Daniel J Exploring federalism. United States of America: University of Alabama Press. Government Notice No Vol May Pretoria. Khoza, Sibonile (ed) Socio Economic Rights in South Africa: A resource book. Community Law Centre, University of the Western Cape. 12

13 Mamba, Bonginkosi. An appraisal of basic infrastructural service delivery and community participation at the local level: A case study of three municipalities in the Eastern Cape. (A thesis submitted in partial fulfilment of the requirements for the degree Master of Commerce (Financial Markets). Department of Economics: Rhodes University, Grahamstown. National Housing Act 107 of Sindane, Jabulani Isaac. November An Analysis of the federal characteristics of the (1996) South African Constitution. Unpublished Master of Arts dissertation. The South African Local Government Chronicle February 2011 Sowetan, Tuesday September Watts, Ronald Introduction. In: Intergovernmental relations an international comparative study. Pretoria: Department of Constitutional Development and Provincial Affairs. Wheare, K.C. (FBA) Federal government. London: Oxford University Press. 13