Civic action for Human Rights accountability

Human Rights protection and advocacy

Tags: Southern Africa , Civil Society Building
Additional tags: Human Rights civic action accountability

Southern Africa, and South Africa in particular, has seen innovative efforts and leadership on the part of lawyers and other civic advocates to promote greater human rights protection on other issues as well. Examples of effec-tive civic advocacy that are deserving of a critical analysis in order to better understand the nature of this advocacy include advocacy on the rights of persons living with HIV/AIDS as well as access to water and shelter. Other examples include efforts to end impunity in authoritarian regimes, either through participation in a negotiations process or by invoking legal enforcement mechanisms.

Human rights have transformed the relationship between civic organisations, states and international organisa-tions, providing interesting possibilities for making direct and indirect human rights claims against states in order to ensure that states live up to their obligations to promote, protect and fulfil human rights. However, the inter-play between civic actors and governments / states in advocating accountability to national and international hu-man rights norms has not often been critically assessed. In the absence of a critical assessment, practitioners have tended to make broad assumptions about the nature of legal norms and institutions and the value of legal advo-cacy that do not always translate into concrete results. This has led to scepticism amongst other civic counterparts and external actors regarding the value of certain forms of civic advocacy, and especially legal advocacy to pro-mote human rights.

The focus is on Southern Africa, where the situation in Zimbabwe has led to a serious humanitarian crisis and a growing number of refugees to South Africa, where the administrative system for deter-mining refugee status is weak. Yet, civic advocacy has shown significant promise in holding government account-able to its national and international human rights obligations.

The research, which will also strive to recognise inherent societal gender imbalances (Merry 2006), will build on on-going and completed work of practitioners in Southern Africa as well as scholars in the ISS community and within the Southern African region.

Objectives and motivation of the study
The rationales of this study are to critically explore the inherent tension that human rights advocates regularly face in, on the one hand, seeking to support government when it has demonstrated a willingness to move in a progres-sive direction and, on the other hand, to hold government and its agents accountable to human rights standards by way of co-operative and confrontational civic-state interactions.

In line with the overall objectives of the Southern Africa research programme, this study has three, broad motiva-tions. Firstly, this research intends to critically analyse the relationship between civic actors in the advocacy of human rights norms as contained in global rules and national laws. Secondly, this research intends to explain the potential practical implications of this critical understanding for human rights practitioners and the various external actors that support their work. Thirdly, this research intends to critically engage scholars and human rights practitioners on these implications, reflecting upon future civic advocacy efforts.

Major research questions
The study will follow the three major research questions of the KP, as adapted to the topic:
1) What are the dynamics of the advocacy work of CSOs in policy debates and poverty monitoring? How relevant and effective is their role for these purposes? Are there negative side effects of the role taken by / allocated to CSOs in these processes? How do CSOs interact / form alliances with other organs for citizen participation, especially with parliaments and local councils? What are the formal roles and respon-sibilities of the elected bodies with regard to poverty policies and how do they perform?
2) How have external actors (international donors and NGO donors) contributed to the dynamics mentioned under 1?
3) How has the role played by CSOs contributed to structural changes in the unequal balance of power in soci-ety?

The conceptual framework that is utilised for this research has already been illustrated in a case study of civic-state interactions on the protection of refugees in South Africa. The intention is to apply this conceptual framework to other case studies of civic action and in particular civic legal action. Accordingly, the specific questions identified for this topic include:

1) What has been the role of civic interventions in enhancing state accountability to protect, promote and respect refugee rights in South Africa?
2) How can these efforts be strengthened and what does this teach us about the potential of civic interven-tions in realising rights in general?

Related questions will include:
a. How do civic organisations play a role in enhancing the protection and promotion of rights, both through co-operation and confrontation, with specific attention to promoting access to: afford-able water, affordable and adequate housing and anti-retroviral drugs in South Africa?
b. How do civic organisations play a role in enhancing the protection and promotion of rights, both through co-operation and confrontation, using legal mechanisms at national and regional levels, in ending impunity in Zimbabwe?
c. How do examples of advocating access rights and ending impunity in an authoritarian regime il-lustrate the dangers of civic organisations becoming compromised or even co-opted, blunting their ability to hold government accountable?
d. Where do the experiences in South Africa relate in promoting global human rights protection ef-forts?
e. Do these experiences confirm some universal lessons or do they reflect the need for treating each case entirely separately?

Conceptual framework for analysing civic-state interactions
A conceptual framework to analyse the interactions between civic and state actors aimed at promoting and/or enforcing state accountability has been developed in the context of current research by Handmaker. This frame-work employs both legal doctrinal as well as socio-legal research methodologies. Legal doctrinal approaches to civic participation in international legal process draw on Higgins (1994), while the application of public (constitu-tional and administrative) law draws on Hoexter (2007) and Klaaren (2006).

The socio-legal aspect of this framework employs a critical realist approach to structure-agency relationships on the basis of Archer’s (1996, 2000) analytical dualism approach. This approach sees mainly state-created structures as conditioning civic agency on the basis of specific historical events, but also allowing for their structural elabora-tion through a process of interplay or ‘morphogenesis’. Accordingly, Merry’s (2006) theory of translating global rules into their local, relevant contexts is combined with Kidder’s (1978) approach of measuring the degree of ‘externalisation’ or ‘social distance’ between law makers and law recipients on the basis of divergences in mean-ings, interests, and political positions.

Research methodology
This research will analyse government / state accountability to national and international normative standards to protect, promote and fulfil human rights. This analysis will be conducted on the basis of a conceptual framework that employs primarily legal normative and socio-legal methodologies. Legal normative methodologies will be applied to a critical analysis of existing obligations in international law of global and regional application as well as the enforcement of these international norms through public (administrative and constitutional) law. Socio-legal methodologies, which recognise the pluralistic nature of legal cultures and systems in Southern Africa, will critique the interplay between civic actors and the government in ‘translating’ global obligations to protect human rights into their local contexts (downward translation) as well as informing international mechanisms engaged in human rights policy-making and enforcement (upward translation).

These methodologies will be applied to contemporary case studies in Southern Africa, based on existing material where possible. Additional qualitative field research will be undertaken, including focussed and semi-focussed interviews and where appropriate employing participatory research methodologies, of stakeholders who have been involved in efforts to influence the content and direction of human rights policies, and the beneficiaries of these efforts. In doing so, this research will draw on the firsthand experiences of lawyers, activists and researchers who have sought to hold governments accountable to their human rights obligations, as contained in international rules and national constitutional and administrative frameworks.