An outline of the activities of the first year of our project

Our project on advocacy and research on ESR is already on its second and final year. This is an outline of the activities of the first year of it.

A-    Horizontal activities

1. Scope and general actions. As the project is not academic but action oriented, it has focused on developing regional networks by linking grassroots NGOs and legal experts, so as to support local advocacy and litigation. Therefore, two regional groups, one Latin American and one African have been formed in the aftermath of two successful regional conferences. One of them has been held in San Juan, Argentina (see below B-1) in April 2012 and the other in Lagos, Nigeria in May 2012. These events involved an opportunity for lawyers across the two continents to engage with developments in ESR advocacy and litigation.  Both regional groups are supported by a Blog dedicated to their activities and, more generally, on the presentation of the project and the dissemination of its outcomes.

2. Training workshops. Another essential element of the project is the organization of training workshops, especially aimed to judges and other legal practitioners. One, aimed especially to African judges has been already held in Kenya (see below, B-5) and another, more universally oriented is scheduled for next November in Åbo, Finland (see below, B-3). Training will enable judges and lawyers to understand what is possible and developments that are occurring around the world.

3. Case-Law Library A major horizontal activity of the project is the organization of a case law library. A number of representative decisions are collected and will be presented and analyzed so as to extract useful conclusions on the efficiency of legal mechanisms for the implementation of ESR. Initially the decisions are presented at the Blog of the Project, but they will be finally collected in a printed volume.

4. Coordination with the International Association of Constitutional Law (IACL). Part of the grant has been used to fund related activities of the International Association of Constitutional Law, such as its Web Page, which will also present analytically the project on ESR. The president of the IACL, Prof. Martin Scheinin, has personally travelled in December 2011 to Pretoria in order to ensure the successful linkage of the other activities of the Association with the project.

B- National activities

B-1 Argentina

1. The basic activity in Argentina has been the “INTERNATIONAL SEMINAR ON PROTECTION OF SOCIAL RIGHTS”, held on 26 and 27 April 2012 in San Juan, in association with the Institute of Constitutional Law, Procedural Constitutional Law and Human Rights at the Faculty of Law of the Catholic University of Cuyo (San Juan, Argentina).

The seminar was organized under the direction of Professors George Katrougalos (Greece), Víctor Bazán (Argentina) and Marcelo Figueiredo (Brazil).

Numerous speakers attended the event, as detailed below:

Argentina: Víctor Bazán and Mario Midón.

Brazil: Marcelo Figueiredo, Luis G. Arcaro Conci, Carlos Goncalves Junior,

Paulo João Pessoa and Konstantin Gerber.

Chile: Gonzalo Cavallo Aguilar.

Colombia: Julio Cesar Ortiz Gutiérrez.

Greece: George Katrougalos.

Panama: Salvador Sánchez.

Paraguay and Mexico: Jorge Silvero Salgueiro.

Peru: César Landa Arroyo.

The seminar was divided into four panels, each of which focused respectively the following topics:

•            The Protection of Social Rights in Latin-America in Global Perspective: Constitutionalization, Justiciability and other Non-Judicial Mechanisms of Protection.

•            Similarities and differences between the judicial activism of courts in Latin-American Countries.

•            Dialogue between international public law and comparative law with national courts in Latin- America.

•            Material and procedural issues relating to Constitutional Remedies.

To the seminar participated more than 350 people, including lawyers, judges, professors, researchers and students.

The panels addressed issues such as the concept, historical and jurisprudential developments of the Economic and Social Rights (ESR) in Latin-America and in Europe.

2. A selection case –law is collected and prepared for the case law library.

B-2 Brazil

1.     Advocacy

A petition was filed at the Brazilian Congress regarding the need of Brazil to ratify the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (with the Protocol and the Declaration of Jurists of IACL Blog attached), in order to foster public hearings about this subject matter. The petition has been translated into English and follows attached.

2.     Case Law Library

29 cases of Brazilian Federal Supreme Court have been selected for the Case Law Library.

3.     Lectures and Papers

The following papers have been written and presented on the conferences organized in the framework of the project. They will be published on the Blog of the project after having been translated in English.

Marcelo Figueiredo, Carlos Gonçalves Júnior, Luiz Guilherme Arcaro Conci, João Paulo Pessoa and Konstantin Gerber were the speakers from Brazil at the Social Rights’ Protection International Seminar at San Juan, Argentina, April, 2012.

Marcelo Figueiredo - “The Concept, the Comprehensiveness and the Protection of Social Rights in Brazil and some characteristics of these rights in South America. The role of the Commission and of the Inter-American Court of Human Rights in the defense of the DESC (Economic, Social and Cultural Rights)”

Carlos Gonçalves Júnior - “Brazilian Judicial Construction Progress: the cases of lack of statute (nonfeasance) and the judicial review analysis”

Konstantin Gerber - “Social Rights’ protection in Brazil: doctrine, litigation and policy”

Roberto Baptista Dias da Silva and Gabriela Cruz – “Nursery school and elementary education as constitutional duties of municipalities”

B-3 Finland

Finland is one of the two European focus countries, partly because of its relatively strong economy during the current financial crisis, partly because its almost unique experience of going through, in the early 1990s, a parallel process of restructuring the public and national economy and the inclusion in the constitution of justiciable provisions on economic and social rights. While the actual project activities in Finland are planned for the second project year, during the first year the project proceeded through a number of preparatory steps:

1.  For the case law library, a fairly large selection of some 40 cases was made, with short English summaries. Work continues towards a final selection on the basis of choosing the cases that are most interesting for a comparative perspective.

2.  The University of Helsinki (Prof. Tuomas Ojanen, constitutional law) was identified as partner for a training course for Finnish judges on the justiciability of economic and social rights. This one-day training event will be arranged on 29 April 2013 with the following speakers:

- Prof. Martin Scheinin, President of the IACL: Justiciability of economic and social rights in a comparative perspective

- Dr. Jarna Petman, member of the European Committee of Social Rights: Case law under the European Social Charter

- Prof. Tuomas Ojanen: The significance of the European Convention on Human Rights and the Covenant on Civil and Political Rights for the justiciability of economic and social rights

- Ms. Maija Sakslin, Deputy Ombudsperson: Economic and social rights in EU law.

3.  The Åbo Akademi University Institute for Human Rights was identified as a partner for a week-long training course on the justiciability of economic and social rights, to be arranged 12-16 November 2012. Judges or lawyers from the other focus countries are being recruited as participants of the course. See https://www.abo.fi/institution/Content/Document/document/26377

4. While Finland is an active proponent of the strengthening of international human rights treaties, including through the adoption of the Optional Protocol to the Covenant on Economic, Social and Cultural Rights, it tends to ratify new treaties and protocols with a delay. This is due to the relatively scarce resources allocated to securing officia translations into the two national languages, Finnish and Swedish, and a complicated process of consultation. As part of the project, advocacy for the ratification of the Optional Protocol is ongoing. Here, the Finnish League for Human Rights was identified as local partner.

B-4 Greece

Greece is the other European focus countries, selected exactly because of its special position  during the current financial crisis, and the challenges the latter poses to the actual implementation of social rights.

1. Therefore, emphasis has been on public litigation and advocacy, in co-operation with EKPODI, an active NGO in this field.  Prof. George Katrougalos has pro bono prepared a petition before the Committee of the European Social Charter for the Confederation of Public Servants in Greece regarding the implications of the austerity measures on the right to social security. The decision of the Committee is expected in the forthcoming week. A number of related articles have been published to the legal and political press.

2.  A questionnaire has been prepared as the basis for the collection of decisions for the  case law library.  A fairly large selection not only of Greek cases but from constitutional courts from all Europe was made, with short English summaries. Work continues towards a final selection on the basis of choosing the cases that are most interesting for a comparative perspective.

3.  The EKPODI has been engaged in an advocacy campaign towards  the adoption of the Optional Protocol to the Covenant on Economic, Social and Cultural Rights.

The acting coordinator of the project, Professor George Katrougalos, has ensured the harmonization of the overall national activities with the general scope of the project.

B-5 Kenya

Kenya has passed its new Constitution in 2010. It is currently undergoing a major process of vetting judges to ensure that they are independent and not corrupt. The role of the judiciary has changed and many judges are unfamiliar with adjudication on the basis of fundamental rights. A judicial training institute has been set up to help train judges to become accustomed to their new role. There is also very little jurisprudence thus far in Kenya relating to socio-economic rights. In this context, it was decided that litigating without ensuring that judges and lawyers understood how to engage with socio-economic rights would not be wise. As a result, the focus for Kenya, it was decided would be on training.

The African Center for International Legal and Policy Research (CILPRA) was appointed as the Kenyan partner for the project in question. Together with Prof David Bilchitz,  a training programme was organised for some of the top judges in Kenya between 10-12 July 2012.

1.     Training Workshop

The basic Kenyan activity was the organization of a training workshop for judges.

Attendees at the training workshop included between 10-12 of the most senior judges in Kenya including the Chief Justice. There were two judges from the Supreme Court, two from the Court of Appeals, and the Heads of Divisions of the High Court.

Supreme Court:

1.           The Hon. the Chief Justice

2.           The Hon. Lady Justice Njoki Ndung’u

Court of Appeal:

3.           The Hon. Lady Justice Martha Koome

4.           The Hon. Lady Justice Hannah Okwengu

Presiding Judges of the Divisions of the High Court:

5.           Criminal – the Hon. Mr. Justice Mbogholi Msagha (Principal Judge);

6.           Civil – the Hon. Mr. Justice H.P.G. Waweru

7.           Family – The Hon. Mr. Justice G.B.M. Kariuki

8.           Commercial and Admiralty – the Hon. Mr. Justice D. K. Musinga

9.           Judicial Review – the Hon. Mr. Justice Mohammed Warsame

10.         Land and Environmental – the Hon. Lady Justice Philomena Mwilu

11.         Leader, Judiciary Transformation Secretariat – the Hon. Mr. Justice (Prof.) Joel Ngugi

12.         The Judiciary Training Institute – the Hon. Mr. Justice P. Kihara Kariuki

We managed to bring together an excellent team of facilitators from South Africa, Kenya, Uganda and the United States who have expertise on particular aspects of SERs and public interest litigation:

1.           Justice Albie Sachs

2.           Prof David Bilchitz

3.           Dr Godfrey Musila,

4.           Prof Christopher Mbazira

5.           Mr Nicholas Orago,

6.           Ms Nkatha Murugi

7.           Prof Andrew Scherer

The programme ran over three days and included discussion on a range of topics. The discussion was divided into more general themes relating to socio-economic, specific rights and public interest litigation. The first part included discussion of the philosophical foundations of socio-economic rights; constitutional models including Kenya; international law, with a  special focus on the Kenyan Constitution; different approaches to giving content to socio-economic rights; separation of powers; and remedies. The second part involved discussion on the rights to adequate housing, food, health-care and education. Unfortunately, there was not sufficient time to cover the rights to water and social security. The last part of the programme addressed public interest litigation and the new approach required by the Kenyan judiciary.

The programme also included an address by Justice Albie Sachs on the process of adjudicating socio-economic rights claims. Justice Sachs’s excellent speech took judges through the ways in which judges think about and collaborate in a judgment on these issues. Andrew Scherer who was sent by the International Senior Lawyers Project, addressed issues relating to public interest litigation.

The judges all expressed appreciation and the Chief Justice and Head of the Judicial Training Institute have discussed possibilities for future co-operation and training. Perhaps the most exciting outcome was to see the judges grappling with their changed role under the new constitutional dispensation (which some seemed not to have fully grasped). We were particularly encouraged by the words of a judge who express the view that, had the workshop come a week earlier, she may have given a different judgment to the one she gave. It seemed clear that the judges could benefit from further training in more general areas of human rights adjudication such as application, limitations/proportionality and also in relation to other topics such as unfair discrimination law, etc. We tried to include many opportunities for discussion and these helped us engage with the areas of content the judges felt they needed input on as well as to address their concerns.

B-6 South Africa

South Africa has had their final Constitution since 1996 and there have been numerous leading cases in which socio-economic rights have been adjudicated upon. Despite this, there have been relatively few cases across 16 years and many questions have been left undecided. It is thus necessary to develop the jurisprudence in South Africa in relation to these rights. The focus of the South African project it was decided would thus be upon public interest litigation in an undeveloped area relating to socio-economic rights.

1.     Advocacy. Prof David Bilchitz, the national coordinator, engaged with the Socio-Economic Rights Institute (SERI) which is a leading human rights NGO in South Africa. SERI focuses on litigation around socio-economic rights. SERI was appointed the implementing partner in South Africa.

2.     Public Litigation.  In considering prospective litigation, it was important to consider where the gaps were. There has been much litigation around the right to housing. There has been some litigation surrounding health and water. Yet, surprisingly, there has not yet been a case relating to the right to food. It was decided to investigate the possibility of litigating a case relating to the right to food.

Discussion surrounding the case began in early 2012 between the Director of SERI, Jackie Dugard and Prof David Bilchitz. Jackie and David had recognized some of the significant gaps that existed in the government’s programmes relating to the right to food.

In May 2012, there was a conference on the Right to Food run by Prof Sakiko Fukuda-Parr (from the New School, New York) at the University of Cape Town. The conference provided an opportunity to assess what was happening relating to the right to food in South Africa and identified several gaps that existed in this regard.

In particular, the right to food is often realized through the social security system. Thus, any litigation would have to engage with the social assistance system. The South African government provides grants to children (up to the age of 18) and older persons (from the age of 60). The disturbing problem that we noted was that if one fell between the ages of 19 and 59, there seemed to be a gap in social security provision unless one was disabled. After investigating, it was found that there was a grant called the ‘social relief of distress grant’ (SROD) available to persons in this age group for a temporary period of 3 months to address people who were in a situation of distress. If this grant were to be effective, it would possibly be able to address the gap we had noted. However, in South Africa there is currently a high rate of structural unemployment and thus the grant seemed badly designed to address continued unemployment (being available generally only for three months). It thus seemed to be focused on crisis situations rather than a situation of chronic poverty. We had also heard from many organization that the grant was not being made readily available to individuals and that it was not being implemented. If one fell between 19 and 59, the reality was that one could starve. In order to ascertain whether or not a successful legal case could be made out, it was necessary to evaluate whether poor people could in fact access the SROD grant. In order to do so, SERI together with Prof Bilchitz agreed that grass-roots research needed to be conducted. The purpose of the research was to ascertain whether poor people who were eligible for the grant were able to access it and the response of officials to prospective grantees. The research would track the position of people, their application and outcome. A researcher has been appointed and is currently conducting research.

The research is not simply an academic study. It also has the aim of helping to mobilize grass-roots community organizations behind the research. In studies of successful socio-economic rights litigation, it has often been shown that the litigation should not simply be an abstract legal challenge. It needs to build social support behind it within poor communities as well as political mobilization to be successful. SERI engaged with a community organization (Abahlali baseMjondolo) who agreed to back the project and prospective litigation. They would identify people in the age appropriate category and work with the researcher to try and secure the grant.

The research is currently being conducted and will determine the way forward in relation to this litigation.

It is too early to judge the outcome or impact of the research and prospective litigation. Nevertheless, the potential of this case is very large and this is why we believe it is worth investing in.

South African has lacked a comprehensive social assistance programme. The Social Relief of Distress grant offers the possibility of plugging the gap that exists in current provision. The grant, as it is conceived is flawed in addressing the situation of people in permanent desperation. Apart from this conceptual flaw, anecdotal evidence is that the grant is not widely available. The aim of this process is to ensure either that the SROD grant is made available to all or that the courts declare the current scheme in violation of the socio-economic rights in the Constitution. Such litigation would indeed be ground-breaking in South Africa and help to establish an entitlement to a basic social minimum which would prevent people from starving in South Africa.