A critical analysis of the violation of the rights to adequate housing, health care, food, and social security of people living in informal settlements in South Africa with specific reference to human development by Khothalang Moseli (2018292728) A mini-dissertation submitted in fulfilment of the requirements in respect of the Master’s Degree of Human Rights in the Free State Centre for Human Rights, Faculty of Law at the University of the Free State Supervisor: Dr Annelie De Man Co-supervisor: Dr Carol Chi Ngang Date: 30 November 2020 1 DECLARATION I declare that this mini-dissertation is my own unaided work. It is submitted for the degree of Master of Human Rights at the University of the Free State, Bloemfontein. It has not been submitted before for any other degree or examination at any other University. Signed_________________ Khothalang Moseli November 2020 2 ACKNOWLEDGEMENT First and foremost I want to thank God who has afforded me the strength, confidence, dedication, and determination to complete this study. It was not an easy journey. However, His grace was sufficient and He has looked upon me with love and kind favour. I would also like to convey my sincere gratitude to my supervisors, Dr Annelie De Man and Dr Carol Chi Ngang whose expertise, understanding, and patience added considerably to my academic growth. I will forever cherish your unconditional support, inspiration, and intellectual guidance throughout the study. Moreover, I would like to express my gratefulness to the Moseli family for their patience, perseverance and understanding throughout the study. I extend my appreciation of your undivided love, support and encouragement. To my late father, Thabo Richard Moseli, your wish that I should become educated and break the generational curse of our family has come true. I will remain grateful that you always believed in me, even when it was unfavourable to do so. You will forever remain in my heart. Lastly, I extend my warmest appreciation to my friends, Kgotso Motemekoane, Thembisa Leeuw and Thandolwethu Mogweni, for the encouragement, counsel, and loyal support that you have shown me. 3 ABSTRACT This mini-dissertation is an investigation into the violation of human rights to adequate housing, health care, food, and social security of people who live in informal settlements in South Africa. It explores their quality of life in informal settlements. The rights to have access to adequate housing, health care, food, and social security are enshrined in sections 26 and 27 of the constitution of the Republic of South Africa of 1996. In order to observe the entitlement of these human rights, the South African government has, since 1994, embarked on legislation, policies, and programmes to improve access to adequate housing, health care, food, and social services among vulnerable and disadvantaged groups in South Africa. However, these efforts have not effectively addressed the challenges faced by informal dwellers in South Africa. Currently, the rights to adequate housing, health care, food, and social security of informal dwellers are being violated in South Africa. The Constitution and several international human rights instruments call for their realisation. However, compared to other rights such as freedom of speech, less effort has been made by the government and non-governmental establishments to fulfil these rights for the betterment of informal dwellers’ living conditions, well-being, and human development. The research question for this study is therefore: How can a rights-based approach to development (RBAD) contribute to the fulfilment of the rights to adequate housing, health care, food, and social services for informal dwellers in South Africa? In order to respond to this question, a desktop analysis and a socio-legal approach were employed to gather information. This study is largely theory-driven; it relies on various sources of evidence namely, on primary and secondary literature, on conducted-research, and on official government instruments that speak to the state of informal settlements in South Africa. This process was guided by four research aims: a) to examine the obligations of the South African government to fulfil human rights; b) to explore the problems experienced by people living in informal settlements that are unique to them, including the factors that have an impact on the realisation of their rights; c) to examine the impact of the non-realisation of human rights on human development and well-being, and; d) to recommend remedial measures to mitigate the violation of the human rights of people who live in informal settlements in South Africa. 4 Informal settlements seem to defy the realisation of socio-economic rights. In their reports, various United Nations Special Rapporteurs present informal dwellers mostly as the victims of human rights violations. This study reveals that there are many barriers to the enjoyment of the rights to adequate housing, health care, food, and social security in informal settlements in South Africa. These mainly have to do with the living conditions of those who are poor, vulnerable, and marginalised. The study observes that unemployment, poverty, bad governance, and corruption are the main contributors to the plight of people who live in informal settlements in South Africa. To address the challenge of informal settlements and, consequently, to ensure that the state respects, protects, promotes, and fulfils the human rights of the poor and the marginalised, this study has observed the need for an RBAD in South Africa. It recommends attaching human rights principles, norms and standards to development processes in South Africa. These principles will improve the living conditions of isolated and disadvantaged groups and will translate into the realisation of human rights. The outcome of this study relates to those who are working actively for the promotion and realisation of human rights, especially for socio-economic rights in South Africa. KEY WORDS: Breaking New Ground, development, food, health care, housing, human rights, informal settlements, rights-based approach to development (RBAD), social security, Upgrading of Informal Settlements Programme 5 LIST OF ABBREVIATIONS AIDS - Acquired Immunodeficiency Syndrome CEDAW - Convention on the Elimination of all Forms of Discrimination against Women CRC - Convention on the Rights of the Child HIV - Human Immunodeficiency Virus ICCPR - International Covenant on Civil and Political Rights ICESCR - International Covenant on Economic, Social and Cultural Rights GEAR - Growth, Employment and Redistribution NDP - National Development Plan NGO - Non-governmental organization PICC - Presidential Infrastructure Co-ordinating Commission RBA - Rights-based approach RBAD - Rights-based approach to development RDP - Reconstruction and Development Programme RD - Right to Development SA - South Africa SAHRC - South African Human Rights Commission SASSA - South African Social Security Agency SERI - Socio-Economic Rights Institute SPII - Studies in Poverty and Inequality Institute StatsSA - Statistics of South Africa TB - Tuberculosis UDHR - Universal Declaration of Human Rights UN - United Nations UNESCO - United Nations Educational, Scientific and Cultural Organization WHO - World Health Organisation OHCHR - Office of the United Nations High Commissioner for Human Rights 6 Table of Contents CHAPTER 1: INTRODUCTION .................................................................................. 9 1.1 Introduction .................................................................................................... 9 1.2 Background and research problem ................................................................ 9 1.3 Motivation for the study ............................................................................... 13 1.4 Research goal and aims .............................................................................. 14 1.5 Research questions ..................................................................................... 16 1.5.1 Main question ........................................................................................ 16 1.5.2 Sub-questions ....................................................................................... 16 1.6 Research methodology ................................................................................ 16 1.7 Structure of the Mini-dissertation ................................................................. 17 CHAPTER 2: CONTENT OF THE RIGHTS OF ACCESS TO ADEQUATE HOUSING, HEALTH CARE, FOOD, AND SOCIAL SECURITY ........................ 18 2.1 Introduction .................................................................................................. 18 2.2 Access to adequate housing, health care, food, and social security under international and in regional human rights law ............................................. 19 2.3 The rights to adequate housing, health care, food, and social security in the South African Constitution ........................................................................... 21 2.3.1 Convergence between the right to adequate housing, health care, food and social security, and other fundamental rights in the South African Bill of Rights ................................................................................................ 25 2.4 Constitutional obligations of the state .......................................................... 26 2.5 Conclusion ................................................................................................... 29 CHAPTER 3: THE RIGHTS-BASED APPROACHES TO DEVELOPMENT ............. 30 3.1 Introduction .................................................................................................. 30 3.2 The convergence between human rights and development ........................ 31 3.3 The rights-based approach to development: Definition and principles ........ 34 3.3.1 Definition of a rights-based approach to development .......................... 34 7 3.3.2 Principles of the rights-based approaches to development ................... 35 3.3.2.1 Participation ................................................................................... 35 3.3.2.2 Empowerment ................................................................................ 36 3.3.2.3 Equality and non-discrimination ..................................................... 37 3.3.2.4 Accountability ................................................................................. 39 3.4 Advantages of the rights-based approach to development .......................... 40 3.5 Limitations and critiques of a rights-based approach to development ......... 44 3.6 Conclusion ................................................................................................... 46 CHAPTER 4: EXPLORING THE QUALITY OF LIFE OF PEOPLE LIVING IN INFORMAL SETTLEMENTS .......................................................... 48 4.1 Introduction .................................................................................................. 48 4.2 Background and description of informal settlements ................................... 49 4.2.1 Description of an informal settlement .................................................... 49 4.2.2 Motivation for informal settlements ........................................................ 51 4.3 The primary challenges of informal settlements .......................................... 53 4.3.1 Access to adequate housing ................................................................. 53 4.3.2 Access to Water .................................................................................... 54 4.3.3 Access to adequate sanitation .............................................................. 56 4.3.4 Electricity ............................................................................................... 57 4.3.5 Health and environment ........................................................................ 58 4.4 Constitutional Court Jurisprudence: Lessons from the Grootboom, Treatment Action Campaign and Khosa cases ............................................................. 60 4.4.1 The Grootboom case: access to adequate housing .............................. 60 4.4.2 The Treatment Action Campaign case: access to health care .............. 62 4.4.3 The Khosa case: access to social assistance ....................................... 63 4.5 Government responses to address the informal settlements challenge ...... 64 4.5.1 The South African Housing Act 107 of 1997 ......................................... 64 8 4.5.2 Breaking New Grounds and Upgrading the Informal Settlement Programme 65 4.5.2.1 Breaking New Grounds .................................................................. 65 4.5.2.2 Upgrading of Informal Settlement Programme ............................... 67 4.5 Conclusion ................................................................................................... 68 CHAPTER 5: CONCLUSION AND RECOMMENDATIONS ..................................... 70 5.1 Summary of the findings .............................................................................. 70 5.2 Recommendations ....................................................................................... 72 5.2.1 Participation .......................................................................................... 73 5.2.2 Equality and non-discrimination ............................................................ 75 5.2.3 Empowerment ....................................................................................... 76 5.2.4 Accountability ........................................................................................ 77 5.3 Conclusion ................................................................................................... 77 LIST OF REFERENCES .......................................................................................... 79 1. TEXTBOOKS AND ELECTRONIC BOOKS ................................................ 79 2. JOURNAL ARTICLES ................................................................................. 82 5. WORKING PAPERS, REPORTS AND STATEMENTS ............................... 89 6. DECLARATIONS, CONVENTIONS AND TREATIES ................................. 92 7. ELECTRONIC RESOURCES ...................................................................... 93 8. NEWSPAPER ARTICLES ........................................................................... 97 9. CASES ........................................................................................................ 97 10. LEGISLATION ............................................................................................. 98 9 CHAPTER 1: INTRODUCTION 1.1 Introduction The growing number of informal settlements in South Africa are characterised by many factors, including a lack of service delivery with regard to adequate housing, water, sanitation, health, and electricity. This study critically explores the violations of the rights to adequate housing, health care, food, and social security of people living in informal settlements in South Africa. This introductory chapter presents the background and research problem, the motivation for the study as well as the research goal and aims, questions, methodology, and structure of the mini-dissertation. 1.2 Background and research problem Human rights were seldom the subject of constitutional law in South Africa prior to 19941, resulting in gross violations of human rights and infringement by the then apartheid government of South Africa. In particular, many South Africans, black citizens, have been deprived of the enjoyment of their basic human rights and have been excluded from basic service delivery and economic opportunities. Discrimination, high economic disparities have subjected them to the high levels of poverty and from enjoying their rights.2 However, this was changed by the 1996 constitution of the Republic of South Africa when it accepted human rights as valuable instruments for creating an equitable and just society.3 It featured a number of provisions guaranteeing enforceable socio-economic rights, such as the right to adequate housing, health care, food and social security. In order to transform the socio-economic well-being of disadvantaged and oppressed communities, the incorporation of these rights has proved promising. They act as valuable tools to make it possible for people to have access to the basic social services and resources required to live a life that is 1 Trilsch M 2009. What’s the Use of Socio-Economic Rights in a Constitution. Taking a Look at the South African Experience, 42. 2 Adato M, Carter MR and May J 2006. Exploring poverty traps and social exclusion in South Africa using qualitative and quantitative data. The Journal of Development Studies, 42(2):.226- 247, 226. 3 Rosenberg A 1995. Equality, Sufficiency, and Opportunity in the Just Society. Social Philosophy and Policy, 12(2), 54-71, 54. 10 compatible with human dignity.4 However, as effective as they are, at least on paper, they have not achieved significant socio-economic change in practice.5 As a result of the apartheid regime, many poor South Africans, particularly black people, are still living in conditions that deprive them of human development, freedom, and well-being.6 Many of these people live in informal settlements with no access to essential services such as water, electricity, and sanitation. In 2019, it was estimated that more than 4 million people or 1.25 million households lived in informal settlements in South Africa.7 Given the past and current lack of service delivery, it is likely that this number has increased and will continue to increase.8 Moreover, informal settlements in South Africa are characterised by inequalities in access to basic services such as water, sanitation, electricity, and health care. The inequalities in the equal distribution of basic services have a negative impact on the standard of living of informal settlement dwellers on the basis of their race, geographic location, and economic status. This also causes multiple deprivations such as inadequate housing and limited access to water and sanitation.9 Owing to the growing concern for informal settlements, Chenwi argues that the presence and growth of informal settlements with little or no access to services and infrastructure is a common feature in South Africa.10 In addition, the Socio-Economic Rights Institute of South Africa (SERI) states that informal settlement inhabitants experience many challenges, partly because they do not have access to adequate housing or essential services.11 In many informal settlements, inhabitants’ lives are 4 Liebenberg S 2002. South Africa's evolving jurisprudence on socio-economic rights: an effective tool in challenging poverty?. Law, Democracy & Development, 6(2):159-191, 159. 5 Langford M, Cousins B, Dugard J, and Madlingozi T eds., 2013. Socio-economic rights in South Africa: Symbols or substance?. Cambridge University Press. 6 Chenwi L 2008. Putting flesh on the skeleton: South African judicial enforcement of the right to adequate housing of those subject to evictions. Human Rights Law Review, 8(1):105-137,113. 7 Royston L and Ebrahim T 2019. Urban land reform: Start with informal settlements. Daily Maverick, 4. Available at https://www.dailymaverick.co.za/article/2019-07-04-urban-land- reform-start-with- informalsettlements/#:~:text=Urban%20informal%20settlements%20are%20the,live%20in%2 0urban%20informal%20settlements. (accessed 26 September 2020). 8 Statistics South Africa (StatsSA), 2016. General household survey: 2016 [homepage on the Internet]. Electronic citation. Available at http://www.statssa.gov.za/?p=9922 (accessed 26 September 2020). 9 Brown-Luthango M, Reyes E and Gubevu M 2017. Informal settlement upgrading and safety: experiences from Cape Town, South Africa. Journal of Housing and the Built Environment, 32(3):471-493, 473. 10 Chenwi 2008: 114-130. 11 Socio-Economic Rights Institute of South Africa (SERI) 2018. Informal settlements and human rights in South Africa. Submission to the United Nations Special Rapporteur on adequate https://www.dailymaverick.co.za/article/2019-07-04-urban-land-reform-start-with-informalsettlements/#:~:text=Urban%20informal%20settlements%20are%20the,live%20in%20urban%20informal%20settlements https://www.dailymaverick.co.za/article/2019-07-04-urban-land-reform-start-with-informalsettlements/#:~:text=Urban%20informal%20settlements%20are%20the,live%20in%20urban%20informal%20settlements https://www.dailymaverick.co.za/article/2019-07-04-urban-land-reform-start-with-informalsettlements/#:~:text=Urban%20informal%20settlements%20are%20the,live%20in%20urban%20informal%20settlements https://www.dailymaverick.co.za/article/2019-07-04-urban-land-reform-start-with-informalsettlements/#:~:text=Urban%20informal%20settlements%20are%20the,live%20in%20urban%20informal%20settlements http://www.statssa.gov.za/?p=9922 11 characterised by an inadequate standard of living, as well as social and economic exclusion with no political will to enhance their standard of living. Although the democratic government has inherited a fragmented system with disparities in housing, health care, and other essential services of the poor and marginalised, the government has not had success in eliminating these disparities. Many efforts have been made to deal with informal settlement challenges by implementing policies such as the basic macro-economic policy of the South African government known as the Growth, Employment and Redistribution (GEAR) plan.12 Moreover, the underlying social development policy and the Reconstruction and Development Programme (RDP),13 which were developed to address needs such as housing and other services, have not adequately addressed the problem of the lack of service delivery and the inequalities that are prevailing in the country. With an increasing number of informal settlements, it is clear that inequalities, specifically in the unequal distribution of resources, do not compliment the constitutional principle of equity in access. Thus, essential services related to socio-economic rights such as adequate housing, health care, food, and social security are immensely overlooked, and a reasonable standard of living has not yet been achieved. The rights to adequate housing, health care, food, and social security are recognised in international human rights instruments. Moreover, the Bill of Rights contained in the South African Constitution of 1996 recognises in section 26(1) that everyone has the right to have access to adequate housing,14 while section 27(1) entrenches the right to health care, sufficient food and water, and social security.15 The government must take reasonable measures to ensure the full realisation of human rights; it is obligated housing as a component of the right to an adequate standard of living. Available at https://www.ohchr.org/Documents/Issues/Housing/InformalSettlements/SERI.pdf, 5. (accessed 30 March 2020). 12 Department of Finance 1996. Growth, employment and redistribution: A macroeconomic strategy. Republic of South Africa, Private Bag X115, Pretoria 0001. 13 South Africa, 1994. White paper on reconstruction and development: government's strategy for fundamental transformation. Johannesburg. 14 Constitution of the Republic of South Africa, 1996; Sec 26(1) states that ‘[e]veryone has the right to have access to adequate housing’. 15 Sec 27(1)(a)(b)(c) of the Constitution states that ‘[e]veryone 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 dependents, appropriate social assistance’. https://www.ohchr.org/Documents/Issues/Housing/InformalSettlements/SERI.pdf 12 to protect, promote, and fulfil human rights.16 However, this is not the case in South Africa because the non-realisation of these fundamental rights is still a stumbling block, specifically to informal settlement dwellers. Although the past two decades have seen economic improvements and democratisation, progress in human development has been uneven and the distribution of resources has caused considerable controversy over the years. Despite an increase in national economic growth, many people are still living below the national poverty line and with no access to adequate housing, health care, food, and social security.17 The policies that are intended to enhance human well-being, particularly public policies in essential areas such as social services, often neglect the poor and favour the privileged, with far-reaching consequences to the achievement of human dignity and to the well-being of all.18 The term “human rights violation” can be understood as rights that are being disregarded, deprived, and overlooked when a person is deprived of their fundamental rights.19 The rights to adequate housing, health care, food, and social security certainly constitute an essential part of human rights laws. Since they represent several rights, they are inextricably linked to employment, access to services, health, security, self- identity, self-respect, and dignity.20 The latter is in line with the principles of indivisibility and the interrelatedness of human rights which are contained in international treaties.21 The increasing lack of access to essential services by informal dwellers displays difficulties of the state to realise these rights. When the rights to adequate housing, health care, food, and social security are not fulfilled, then these have a negative impact on other rights and on human development. 16 Ngang CC 2014. Judicial enforcement of socio-economic rights in South Africa and the separation of powers objection: The obligation to take other measures. African Human Rights Law Journal 14(2):655-680, 662. 17 Statistics South Africa 2019. Five facts about poverty in South Africa. Available at http://www.statssa.gov.za/?p=12075 (accessed 26 September 2020). 18 Darrow M and Tomas A 2005. Power, capture, and conflict: a call for human rights accountability in development cooperation. Human Rights Quarterly, 471-538, 475. 19 Cawthra G 1993. Policing South Africa: The South African police & the transition from apartheid. David Philip Publishers. 20 Ismail MIE 2005. The integration of housing rights into the informal settlement intervention process: An international review (Doctoral dissertation).University of the Witwatersrand, 41. 21 See art 1 of the UDHR art 1, Preamble of the ICESCR, and art 2 of the African Charter. http://www.statssa.gov.za/?p=12075 13 1.3 Motivation for the study This study is motivated by the sentiments expressed by the former South African President, Nelson Mandela, during the African National Congress Bill of Rights Conference in 1991. He stressed that: A simple vote, without food, shelter and health care is to use first-generation rights as a smokescreen to obscure the deep underlying forces which dehumanise people. It is to create an appearance of equality and justice, which by implication socioeconomic inequality is entrenched. We do not want freedom without bread, nor do we want bread without freedom. We must provide for all the fundamental rights and freedoms associated with a democratic society.22 As already mentioned, the South African Constitution contains a Bill of Rights that recognises civil and political rights, as well as social, economic, and cultural rights. Accordingly, the government has both a negative duty not to interfere with the enjoyment of these rights and a positive duty to promote, fulfil, and protect the rights of those within its jurisdiction. Although the Bill of Rights affirms the protection and fulfilment of human rights, in particular the rights to adequate housing, health care, food, and social security, informal dwellers continue to live in conditions that deprive them of human dignity and of well-being. These rights are supposed to guarantee all citizens equality, freedom, and human dignity irrespective of race, colour, and sex, including their economic and social status.23 This was confirmed in the case of Social Justice Coalition v Minister of Police in the Western Cape24 where the Equality Court ruled that poverty constitutes grounds for unfair discrimination. The South African government remains merely rhetoric in enforcing and fulfilling equal human rights for all. Although rights and obligations demand accountability, the state is rarely held accountable for human rights violations in South Africa.25 The non- realisation of human rights does not only affect people living in informal settlements but it also has an impact on South African citizens. For example, informal dwellers live in extreme poverty without having their basic needs met such as access to adequate food. Consequently, many resort to crime in order to survive which, in turn, affects all 22 Mandela NR 1991. Address on the occasion of the ANC’s Bill of Rights Conference, in a Bill of Rights for a Democratic South Africa: papers and report of a conference convened by the ANC’s constitutional committee, May 1991 (Centre for Development Studies, UWC), 9 – 14, 12. 23 Van Rensburg LJ and Lamarche, L 2005. The right to social security and assistance. Brand, 151-194, 171. 24 Social Justice Coalition & Others v Minister of Police 2019 4 SA 82 (WCC). 25 Mubangizi JC 2005. Know your rights: Exploring the connections between human rights and poverty reduction with specific reference to South Africa, South African Journal on Human Rights, 21(1): 32-46, 38-41. 14 the people of South Africa. Besides, the lack of access to essential services and to other associated factors such as pollution, overcrowding, and poor waste management in informal settlements could harm the economy. Today, South Africa is ranked among the countries with the highest unemployment rates, poverty, and crime. The people most affected are the poorest and the most vulnerable. According to Mubangizi, the full realisation of human rights requires a rights-based approach (RBA) towards human development, including active and informed participation by the poor in the formulation, implementation, and monitoring of development strategies.26 Thus, this research explores the extent of non-realisation of fundamental human rights of people living in informal settlements, namely the rights to adequate housing, health care, food, and social security; how these ultimately have an impact on their human development; and how an RBAD could contribute to the equal fulfilment of rights. 1.4 Research goal and aims This study critically analyses violations of the rights to adequate housing, health care, food, and social security of people living in informal settlements in South Africa with specific reference to human development. The study critically explores what contributes to the realisation or non-realisation of the human rights of informal settlement dwellers. The overall goal of the study is to gain an in-depth understanding of the extent to which the abovementioned rights are not fulfilled in informal settlements and what impact this has on human development by looking at government obligations and the nature of development in South Africa. Furthermore, the study demonstrates the importance of human rights and development as interrelated concepts that could enhance social well-being. To achieve this goal, the following aims were formulated: a) To examine the South African government’s obligations to fulfil human rights; b) to explore the problems experienced by people living in informal settlements that are unique to them and the factors that have an impact on the realisation of their rights; c) to examine the impact that the non-realisation of human rights has on human 26 Mubangizi 2005: 38. 15 development and well-being; and d) to recommend remedial measures to mitigate the violation of the human rights of people living in informal settlements in South Africa. Moreover, this study recommends that an RBAD should be applied to the public policies of the government that are geared towards the realisation of the rights, which is the focus of this study and towards human development upon the whole. An RBAD calls for the inclusion of human rights, norms, and legal standards in development strategies. Also, Darrow and Tomas argue that an RBAD brings both a normative and an instrumental approach to development.27 The normative-based approach ensures that human rights form a compulsory part of an operational frame of reference through legal and moral obligations. Normative standards reflect that human rights are ends in themselves and that they must be given distinct and clear consideration in developmental processes. Furthermore, the instrumental approach stems from a conviction that an RBA produces more effective programming for poverty reduction and development.28 The adoption of this approach would allow informal settlement dwellers to participate in decision-making that affects their lives. Furthermore, it will empower them to enhance their lives efficiently without fear of discrimination. In view of the growing number of informal settlements, this approach is recommended mainly because the comprehensive approach, which is represented by the National Development Plan (NDP)29 and which is reinforced by the Presidential Infrastructure Co-ordinating Commission's (PICC)30 strategy on infrastructure, has proven to be inadequate to address the growing concern of informal settlements. In 2013, former Human Settlements Minister Tokyo Sexwale, stressed that “[t]he NDP further highlights the need to professionalise the public service, including the creation of capacity and competency, particularly at local government level”.31 This study argues that the only way to achieve the latter is by adopting an RBAD in South Africa. 27 Darrow & Tomas 2005:92 28 Darrow & Tomas 2005: 493. 29 National Planning Commission 2012. National Development Plan 2030: Our future-make it work. 30 Presidential Infrastructure Coordinating Commission 2012. A summary of the South African national infrastructure plan. Presidential Infrastructure Coordinating Commission, South Africa. Available at http://www.gov.za/issues/nationalinfrastructure-plan (accessed 26 February 2020). 31 Sexwale T 2013. Informal settlements a problem. IOL. Available at https://www.iol.co.za/news/politics/informal-settlements-a-problem-sexwale-1488954 (accessed 18 October 2019). http://www.gov.za/issues/nationalinfrastructure-plan https://www.iol.co.za/news/politics/informal-settlements-a-problem-sexwale-1488954 16 1.5 Research questions 1.5.1 Main question The main research question of the study is: How can an RBAD contribute to the fulfilment of the rights to adequate housing, health care, food, and social services for informal dwellers in South Africa? 1.5.2 Sub-questions a) What are the human rights obligations of the government of South Africa concerning the rights to adequate housing, health care, food, and social security? b) What are the challenges experienced by people living in informal settlements that are unique to them and the factors that have an impact on the realisation of their rights? c) To what extent are their rights being realised or not being realised? d) How does this violation or non-realisation contribute to their overall development and well-being (including the realisation of other human rights); and e) What is an RBAD and how can it contribute to the equal fulfilment of the rights of informal settlers in light of the advantages and limitations of this approach? 1.6 Research methodology For this study, a qualitative approach was employed. According to Denzin and Lincoln, such an approach is a multi-perspectival one that attempts to understand events in their natural setting.32 Therefore, based on the nature of the topic being investigated, a qualitative study, guided by an exploratory, descriptive, and contextual research design was employed. Moreover, a desktop approach was used to gather information. A desktop approach refers to a study that is carried out exclusively by using publicly available data or information.33 This methodology was employed to analyse, describe, explain, and conceptualise data. In addition, this study follows a socio-legal approach in which the “analysis of law is directly linked to the analysis of the social situation to which the law 32 Denzin NK 2005. The discipline and practice of qualitative research. In. NK Denzin & YS Lincoln. Handbook of qualitative research, 1-42. 33 Management Study Guide 2013. Desk research–methodology and techniques. Available at https://www.managementstudyguide.com/desk-research.htm (accessed 18 October 2019). https://www.managementstudyguide.com/desk-research.htm 17 applies, and should be put into the perspective of that situation by seeing the part the law plays in the creation, maintenance and/or change of the situation”.34 Relevant literature such as international legal sources, including customary international law, treaties, declarations, resolutions, and reports as well as general principles of law, judicial decisions, interpretative human rights instruments, academic works, public policies, stories, and studies on development in South Africa were reviewed. 1.7 Structure of the Mini-dissertation This mini-dissertation consists of five chapters. The introductory chapter presents the background to the study, the research problem, the research goal and aims, the research questions, the methodology and an outline of the study. The second chapter provides a historical background of the rights to adequate housing, health care, food, and social security by examining international human rights law treaties, regional and national legislations. It further looks at the obligations of the government to respect, protect, promote, and fulfil human rights. The third chapter analyses the RBAD framework by illustrating on the one hand, how human rights can improve development programming and, on the other hand, how development can enhance the realisation of human rights. The fourth chapter examines the quality of life of people living in informal settlements; it focuses specifically on the description and causes of informal settlements. The challenges faced by informal dwellers and the remedial measures employed by the government in response to the growing challenges of informal settlements are also discussed. The concluding chapter presents a summary of the findings and offers recommendations. 34 Schiff DN 1976. Socio-legal theory: social structure and law. The modern Law review, 39(3):287-310, 287. Available at https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1468- 2230.1976.tb01458.x#:~:text=According%20to%20a%20socio%2Dlegal,or%20change%20of %20the%20situation. (accessed 20 October 2020). https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1468-2230.1976.tb01458.x#:~:text=According%20to%20a%20socio%2Dlegal,or%20change%20of%20the%20situation. https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1468-2230.1976.tb01458.x#:~:text=According%20to%20a%20socio%2Dlegal,or%20change%20of%20the%20situation. https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1468-2230.1976.tb01458.x#:~:text=According%20to%20a%20socio%2Dlegal,or%20change%20of%20the%20situation. 18 CHAPTER 2: CONTENT OF THE RIGHTS OF ACCESS TO ADEQUATE HOUSING, HEALTH CARE, FOOD, AND SOCIAL SECURITY 2.1 Introduction The notion of human rights is a prominent global phenomenon that has been used to eliminate inequalities, discrimination, and other injustices affecting humankind. Human rights perceive all people as equal without distinguishing, among others, between sex, race, culture and religion.35 Human rights seek to protect people against economic, political, social, and cultural injustices and to ensure that they enjoy the liberties that are essential for well-being and for better living standards. Human rights violations that are related to these liberties are commonly observed in vulnerable communities such as informal settlements and slums, which are quite common to South African societies. The Bill of Rights provides for and guarantees socio-economic rights, civil, and political rights. The government is constitutionally obligated to ensure their full realisation. Section 7(1) of the Constitution reads as follows: “This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom”.36 The enforcement of the right to adequate housing, health care, food, and social security is an essential requirement for the full enjoyment of all fundamental human rights. These rights are constitutionally recognised and guaranteed in sections 26(1),37 and 27(1) of the South African Constitution.38 The obligation of the government to human rights law is thus to respect, promote, protect, and fulfil these rights.39 This chapter contains a comprehensive account of the content on the right to adequate housing, health care, food, and social security. Section 2.2 examines access to adequate housing, health care, food, and social security under international and 35 Ngang 2014: 658. 36 Sec 7(1) of the Constitution of the Republic of South Africa, states that ‘[t]his Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom’. 37 Sec 26(1) of the Constitution of the Republic of South Africa, 1996 states that ‘[e]veryone has the right to have access to adequate housing’. 38 Sec 27 of the Constitution. 39 Fukuda-Parr S 2013. Human rights and politics and development. In M Goodhart 2013. Human rights: Politics and practice 2nd ed Oxford University Press: Oxford, 167-170. 19 regional human rights law. Section 2.3 explores the rights to adequate housing, health care, food, and social security in the South African Constitution. This section further analyses the convergence between the rights in question and other rights. Section 2.4 examines the obligation of the government to ensure the realisation of socio-economic rights in South Africa. 2.2 Access to adequate housing, health care, food, and social security under international and in regional human rights law The Universal Declaration of Human Rights (UDHR) affirms the rights to adequate housing, health care, food, and social security.40 These rights are indivisibly linked to other socio-economic, civil, and political rights.41 This is enshrined in article 25(1)42, which reads as follows: Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in the circumstances beyond his control. On the one hand, the socio-economic rights incorporated impose no binding obligations on countries to ensure their realisation due to the fact that the UDHR is just a declaration and not a treaty. On the other hand, the International Covenant on Economic, Social and Cultural Rights (ICESCR)43 is a legally binding treaty instrument that imposes obligations on state parties to ensure the realisation and protection of the rights contained in it.44 South Africa ratified the Covenant in 2015.45 The ICESCR 40 UNG Assembly 1948. Universal declaration of human rights. UN General Assembly, 302(2) (adopted on 10 December 1948). http://www.verklaringwarenatuur.org/Downloads_files/Universal%20Declaration%20of%20Hu man%20Rights.pdf. (accessed 10 February 2020). 41 https://www.ohchr.org/en/issues/pages/whatarehumanrights.aspx#:~:text=All%20human%20ri ghts%20are%20indivisible,economic%2C%20social%20and%20cultural%20rights. (accessed 19 October 2020) 42 Art 25(1) of the UDHR. 43 International Covenant on Economic, Social and Cultural Rights (adopted on 16 December 1966 and entered into force 3 January 1976). (http://www.ohchr.org/Documents/ProfessionalInterest/cescr.pdf). (accessed 10 February 2020). 44 Kalantry S, Getgen JE & Koh SA 2010. Enhancing enforcement of economic, social, and cultural rights using indicators: A focus on the right to education in the ICESCR. Human Rights Quarterly 32(15):254-279, 255. 45 Moyo 2016: 7-8. http://www.verklaringwarenatuur.org/Downloads_files/Universal%20Declaration%20of%20Human%20Rights.pdf http://www.verklaringwarenatuur.org/Downloads_files/Universal%20Declaration%20of%20Human%20Rights.pdf https://www.ohchr.org/en/issues/pages/whatarehumanrights.aspx#:~:text=All%20human%20rights%20are%20indivisible,economic%2C%20social%20and%20cultural%20rights https://www.ohchr.org/en/issues/pages/whatarehumanrights.aspx#:~:text=All%20human%20rights%20are%20indivisible,economic%2C%20social%20and%20cultural%20rights http://www.ohchr.org/Documents/ProfessionalInterest/cescr.pdf 20 guarantees the rights to adequate housing, health care, food and social security in articles 9, 11 and 12 respectively.46 Furthermore, the African Charter on Human and Peoples’ Rights, which was adopted in 1981, affirms that everyone has equal rights by virtue of being human.47 Article 16(1) of the Charter notes that everyone has the right to enjoy the best attainable physical and mental health. In addition, article 24 provides that everyone is entitled to an acceptable environment that is favourable to their development.48 This is a recognition of the need to have access to adequate housing, health care, food, and social security. The Convention on the Rights of the Child, the Rome Declaration on World Food Security, and the Convention on the Elimination of all Forms of Discrimination against Women also protect the rights to adequate housing, health care, food, and social security.49 The United Nations (UN) Declaration on the Right to Development (DRD), which was adopted in 1986, acknowledges the rights described above in article 8. 50 This declaration emphasises the fact that states should take the necessary measures to ensure the right to development by taking significant steps in providing access to 46 Art 9 states that ‘[t]he States Parties to the present Covenant recognise the right of everyone to social security, including social insurance’. Art 11 states that ‘[t]he States Parties to the present Covenant recognise the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realisation of this right, recognising to this effect the essential importance of international cooperation based on free consent'. Art 12 provides that ‘[t]he States Parties to the present Covenant recognise the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’. See also Chowdhury 2012:62; UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 19: The right to social security (Art. 9 of the Covenant), 4 February 2008, E/C.12/GC/19, available at https://www.refworld.org/docid/47b17b5b39c.html (accessed 1 October 2020). 47 African Charter on Human and People's Rights (adopted in 1981 and entered into force on 21 October 1986). Article 16(1) provides that '[e]very individual shall have the right to enjoy the best attainable state of physical and mental health’. 48 Art 24 states that ‘[a]ll peoples shall have the right to a satisfactory general environment favourable to their development’. 49 De Vos P et al 2015. South African Constitutional Law in Context. Oxford University Press: Oxford, 676; Convention on the rights of the child (adopted 20 November 1989, entered into force on 2 September 1990); Declaration R 1996. Rome declaration on world food security and world food summit plan of action; UNGA 1979. Convention on the Elimination of All Forms of Discrimination against Women (adopted on 18 December 1979 and entered into force on 3 September 1981). 50 Declaration on the Right to Development (adopted on 4 December 1989). Art 8(1) states that ‘[s]tates should undertake, at the national level, all necessary measures for the realisation of the right to development and shall ensure, inter alia, equality of opportunity for all in their access to basic resources, education, health services, food, housing, employment and the fair distribution of income’. https://www.refworld.org/docid/47b17b5b39c.html 21 essential resources, education, food, health care, housing, and a fair share of income.51 The recognition of the relevant socio-economic rights in the international instruments that have been explored, confirms that they are indeed essential rights for human existence in order to maintain and sustain well-being. These rights are crucial primary tools required to protect the poor who need protection to survive. Although these rights have been fully endorsed in international instruments, the deficit of resources, corruption and maladministration at national level hinder their realisation. Millions of people in South Africa, particularly in underdeveloped communities, are still being denied enjoyment of their fundamental socio-economic rights.52 2.3 The rights to adequate housing, health care, food, and social security in the South African Constitution The right to housing is a fundamental human right acknowledged both in international human rights instruments and in the South African Constitution.53 Under section 26(1) of the Constitution, everyone has the right to adequate housing. Section 26(2) 54 stresses that the government must take legislative and other procedures within its means and available resources, to progressively realise the right to housing. Moreover, section 26(3) prohibits all arbitrary evictions. It states that 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”.55 The meaning of section 26 and, specifically, section 26(3), has been interpreted in many court cases, including the Grootboom case.56 In this case, the Constitutional Court found the government's housing programme unreasonable because it made no provision for access to housing for people in need. The Court held that a government programme “must clearly 51 Art 8(2) states that ‘[e]ffective measures should be undertaken to ensure that women have an active role in the development process. Appropriate economic and social reforms should be carried out with a view to eradicating all social injustices’. 52 Currie I & De Waal J 2013. The Bill of Rights handbook. Juta and Company Ltd: Cape Town, 451-573. 53 Dugard J, Clark M & Stuart T 2016. The right to housing in South Africa. Socio-economic rights: Progressive realisation 155-262, 156. 54 Sec 26(2) of the Constitution. 55 Williams LA 2013. The right to housing in South Africa: an evolving jurisprudence. Columbia Human Rights Law Review 45:817-845, 820-823. 56 Government of the Republic of South Africa v Grootboom 2000 (1) SA 46 (CC) para 19-20. 22 allocate responsibilities and tasks to the different spheres of government and ensure that the appropriate financial and human resources are available”.57 The concept of housing means providing comfort and stability in the form of shelter as a place to sleep, eat, relax, and raise a family.58 This implies that a house is a primary element for the realisation of human well-being. Human rights, as mentioned above, are indivisible, interrelated, and interdependent. Therefore, the right to adequate housing cannot be envisaged in isolation without taking into consideration other rights such as health care, food, water, and education.59 Moreover, the South African Human Rights Commission (SAHRC) has stressed that the right to housing is inherently linked to broader economic developments such as labour markets, geographical, and migration aspects that affect access to housing.60 Similarly, as with the right to adequate housing, South Africa has experienced numerous health issues. Since 1994, the government has been implementing legislation, policies, and programmes to improve access to health care services among vulnerable and impoverished communities in South Africa. 61 Health care services in South Africa have gradually been affected by past racial and gender divisions, by socio-economic conditions, and by several other arbitrary factors. 62 Previous racial divisions reflect in the current socio-economic fragmentation of health care delivery systems, where a small number of privileged people have broader access to private health insurance and to private health care facilities.63 Unfortunately, a large number of the population solely depend on overstrained and under-resourced 57 Grootboom case: para 40; Olivier M 2002. Constitutional perspectives on the enforcement of socio-economic rights: Recent South African experiences. Victoria University of Wellington Law Review (33):117-152, 133. 58 South African Human Rights Commission 2016. The Right to Adequate Housing Factsheet, 2. Available at https://www.sahrc.org.za/home/21/files/Fact%20Sheet%20on%20the%20right%20to%20adeq uate%20housig.pdf (accessed 3 March 2020). 59 Smith 2007: 43. 60 SAHRC 2016:2. 61 Ebi 2016: 35. 62 Moyo K 2016. Realising the right to health in South Africa. Socio-economic rights-Progressive realisation, 3. Available at https://www.fhr.org.za/files/7215/1247/1732/Health.pdf (accessed 30 October 2019). 63 Mcintyre, D, Thiede M, Nkosi M, Mutyambizi V, Castillo-riquelme M, Gilson L, Erasmus E, and Goudge J 2007. ‘SHIELD work package 1 report: a critical analysis of the current South African Health System’. Available at http://citeseerx.ist.psu.edu/viewdoc/download;jsessionid=EC8CF46176281B7F550C45B988D 5B882?doi=10.1.1.192.5891&rep=rep1&type=pdf, 73. (accessed 1 October 2020). https://www.sahrc.org.za/home/21/files/Fact%20Sheet%20on%20the%20right%20to%20adequate%20housig.pdf https://www.sahrc.org.za/home/21/files/Fact%20Sheet%20on%20the%20right%20to%20adequate%20housig.pdf https://www.fhr.org.za/files/7215/1247/1732/Health.pdf http://citeseerx.ist.psu.edu/viewdoc/download;jsessionid=EC8CF46176281B7F550C45B988D5B882?doi=10.1.1.192.5891&rep=rep1&type=pdf http://citeseerx.ist.psu.edu/viewdoc/download;jsessionid=EC8CF46176281B7F550C45B988D5B882?doi=10.1.1.192.5891&rep=rep1&type=pdf 23 public health care facilities. Moyo64 stresses that, although there have been attempts to improve the health care system, the quality of services being provided remain poor. Moreover, many people do not have access to clean water, sanitation, nutrition, and electricity, which is a catalyst for poor health. Despite increased budgetary allocations in the healthcare sector and despite improved social policies, South Africa has not yet addressed health disparities in society efficiently. Considerable inequities remain that are primarily due to biases in resource allocation. However, section 27(1) of the Constitution guarantees that everyone has the right to access health care services.65 The right to have access to health care services, including reproductive health care, is intended to advance the quality of life and living standards of all South African citizens.66 Moreover, section 27(1)(b) stresses that no person can be denied emergency medical treatment. Access to health services is furthermore provided in section 28(1)(c), which guarantees that every child has a fundamental right to access health care services. De Vos et al state that section 39(1)(a)67 of the Constitution requires us to “promote the values that underlie an open and democratic society based on human dignity, equality and freedom when interpreting the Bill of Rights”.68 This shows that the government has the primary duty to ensure that the right to health care is realised. For example, the government is obligated to take measures, to consider available resources, to provide accessible health facilities such as clinics and hospitals, and to provide affordable health care for the poor and the vulnerable.69 Regarding the right to food, millions of people around the world go to sleep on an empty stomach. Hunger and other associated aspects are of global concern. An estimated 870 million people are believed to be affected by hunger, especially in 64 Moyo BH 2016. Advocating for the right to food in South Africa-an analysis of judicial activism, public interest litigation and collective action in South Africa as a strategy to secure the right to food. Doctoral dissertation, University of the Witwatersrand, Johannesburg, 27. Available at http://wiredspace.wits.ac.za/handle/10539/21891 (accessed 25 October 2019). 65 Sec 27(1) of the Constitution. 66 The South African Human Rights Commission 2018. Access to health care: final Access to Health Care Educational Booklet, 3. Available at https://www.sahrc.org.za/home/21/files/FINAL%20Access%20to%20Health%20Care%20Edu cational%20Booklet.pdf (accessed 3 March 2020). 67 Sec 39(1)(a) of the Constitution states that ‘[w]hen interpreting the Bill of Rights, a court, tribunal or forum—(a) must promote the values that underlie an open and democratic society based on human dignity, equality and freedom’. 68 De Vos et al 2015: 670. 69 De Vos et al 2015: 670. http://wiredspace.wits.ac.za/handle/10539/21891 https://www.sahrc.org.za/home/21/files/FINAL%20Access%20to%20Health%20Care%20Educational%20Booklet.pdf https://www.sahrc.org.za/home/21/files/FINAL%20Access%20to%20Health%20Care%20Educational%20Booklet.pdf 24 developing nations.70 Similarly, many South Africans, including children, are faced with challenges brought about by hunger. The situation is worse in rural areas and in informal settlements. The food plight, which is a global phenomenon, has led to the recognition and protection of the right to food.71 The right to food is guaranteed both in international law instruments and in the South African Constitution. It is affirmed in section 27(1)(b) of the South African Constitution, which states that “[e]veryone has the right to have access to sufficient food and water”.72 The right to food also includes the right to assist those who are not able to take care of themselves. However, this assistance should take place in a dignified manner. Furthermore, the right to food includes access to land, security and prosperity, and access to water and seeds, to mention but a few.73 Moreover, section 27(1)(c) further affirms that everyone has the right to have access to “social security, including, if they are unable to support themselves and their dependents, appropriate social assistance”.74 The government further has a duty to take right-based legislative and other measures within its available resources to achieve the progressive realisation of this right.75 Unlike adults, children have rights to claim directly from social security and the right to social services. It is entrenched in a cluster of other economic and social rights granted to children, as stipulated in section 28(1)(c) of the Constitution. This section provides that every child has the right to adequate nutrition, essential health care services, and social services.76 According to Plagerson and Ulriksen, social security is a way of redressing the injustices that have happened in the past. However, poverty and inequality in South Africa have continued to worsen by constraining the realisation of the right to social security and assistance; 70 Durojaye E & Chilemba E 2018. Accountability and the right to food: A comparative study of India and South Africa, 1-37, 1. 71 MacLaren D, Moyo B & Jeffery J 2015. The right to food in South Africa: An analysis of the content, policy effort, resource allocation and enjoyment of the constitutional right to food. Johannesburg, South Africa: Studies in Poverty and Inequality Institute Working Paper, 36. 72 De Schutter O 2012. From charity to entitlement: Implementing the right to food in Southern and Eastern Africa (Vol. 5). Briefing Note No, 6. Special Rapporteur on the right to food – OHCHR. 73 Durojaye & Chilemba 2018:2. 74 Sec 27(1)(c) of the Constitution. 75 Olivier M & Van Rensburg LJ 2009. Protection and enforcement of the right to social security. Law, Democracy & Development, 4(1): 87-99, 90-91. 76 Sec 28(1)(c) of the Constitution states that ‘[e]very child has the right to basic nutrition, shelter, basic health care services and social services’. 25 many people remain trapped in the cycle of poverty and inequality.77 Consequently, the affected groups are further exposed to discrimination, isolation, and extreme hardship.78 2.3.1 Convergence between the right to adequate housing, health care, food and social security, and other fundamental rights in the South African Bill of Rights The 1948 UDHR stresses that all human rights are indivisible, interrelated, and interdependent in nature. 79 It implies that human rights cannot be conceived or function in isolation, each one influences the other. In other words, the realisation of a specific right substantially affects the achievement of other rights and, consequently, the well-being of humans.80 Similarly, the violation of one right leads to the breaching of other rights. For example, deprivation from food can have an impact on a person’s health and thus on their right to the highest standard of attainable health. Under the South African constitutional dispensation, it is demonstrated that no right can be enjoyed to the exclusion of other rights. The Constitution does not distinguish between socio-economic, civil, and political rights. In other words, the Constitution affirms that all human rights are accorded the same status. This implies that the rights to access adequate housing, health care, food, and social security interrelate with other rights as they would require a particular set of rights enshrined in the Constitution to be enforced.81 The Court’s decision in Ngalo v South African Social Security Agency (SASSA), 82 demonstrates the interrelatedness of the rights. Moreover, the Constitutional Court’s decision in Grootboom,83 equally stresses that the Constitution supports and has a substantial impact on the dignity of peoples and on their quality of 77 Plagerson S & Ulriksen MS 2017. The right to social security in South Africa. In Socio-economic Rights: progressive realisation (457-516). Foundation for Human Rights, 7. 78 Du Plessis P & Conley L 2007. Children and poverty in South Africa: The right to social security. Educational Research and Reviews, 2(4): 049-059, 049. 79 The preamble recognises that ‘[w]hereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’. See also Alston P & Goodman R 2013. International human rights. Oxford University Press: Oxford, 139. 80 Killander M 2008. International human rights in context - Law, politics, morals. In Alston P & R Goodman: recent publications. African Human Rights Law Journal, 8(2), 617-619. 81 Moyo 2016: 41. 82 Ngalo v South African Social Security Agency (2740/11) [2013] ZAECMHC 4 [2013]: para 26. 83 Government of the Republic of South Africa v Grootboom 2000 (1) SA 46 (CC): para 19-20. 26 life.84 It is therefore within the powers of the government as duty-bearers to ensure the full respect, protection, promotion, and enforcement of all human rights equally. 2.4 Constitutional obligations of the state According to Ngang85, socio-economic rights are a matter of obligation and a rule of law that must be fulfilled. The government as the primary duty-bearer of the rights to adequate housing, health care, food, and social security must respect, protect, promote, and enforce all human rights enshrined in the South African Constitution. The government should not, at any given time, compromise the rights of the people or render these difficult to realise. Section 7(2) of the Constitution states that “[t]he State must respect, protect, promote and fulfil the rights in the Bill of Rights”.86 These duties prevent the government from interfering with the enjoyment of individual human rights. Moreover, they force the government to take the requisite measures to achieve these rights.87 Concerning the obligation to respect, the government must not arbitrarily deprive or deny access to socio-economic rights. Courts have, on many occasions, dealt with the obligation to respect. For example, the Constitutional Court in the Grootboom case held that the government neglected its duty to respect the rights of the occupiers of privately owned land. Occupiers were evicted from their homes earlier than the date ordered by the court and under circumstances that saw settlers’ homes destroyed.88 Regarding the obligation to protect, the government must draft and implement legislation that prevent people or organisations such as banks, insurance companies, employers, and landlords from violating socio-economic rights. For example, the government should protect the right to food as a negative right by passing and enforcing laws to prevent individuals and companies from violating this right. The government must also enforce these laws by establishing bodies that will investigate and provide effective remedies should these rights be violated.89 84 Ebi 2016: 44. 85 Ngang 2014: 662. 86 Sec 27(2) of the Constitution. 87 Khoza S 2007. Socio-economic rights in South Africa: A resource book. Community Law Centre, University of the Western Cape, 35. 88 Government of the Republic of South Africa v Grootboom, 2000 (1) SA 46 (CC). 89 Welch AR 2005. Obligation of State and Non-state Actors Regarding the Human Right to Water Under the South African Cohabitation, Sustainable Development Law & Policy, 62; Landman T 27 Similarly, the government has a duty to promote means of ensuring that it remains active to increase an awareness of socio-economic rights. This includes educating people about policies and programmes that will help them in having access to their socio-economic benefits. For example, the government may use media outlets to inform people about their rights and about how and where to go in order to claim them. As such, the obligation to promote compels the government to create a conducive environment that enables right holders to claim and exercise their rights. This is only achievable when the government creates sufficient awareness of human rights by educating the public about their rights and about how to seek redress when there has been a violation.90 Attention should be drawn to an over-dependence on the law, as the option of engaging in legal processes to claim rights can be lengthy, expensive, and often not accessible to those most in need.91 The duty to fulfil means that the government must take steps to assist people without housing, health care, food, water, and social security to gain access to these rights. It is clear that the full realisation of these rights in South Africa cannot be achieved overnight because of the large backlogs inherited from apartheid and due to current poverty levels. The Constitution recognises that fully realising socio-economic rights is a long-term process.92 Sections 26 and 27 describe the duty of the government to fulfil socio-economic rights: “The State must take reasonable legislative and other measures within its available resources, to achieve the progressive realisation of each of these rights”.93 Taking measures within available resources acknowledges that resources are not limitless and that the government must do as much as possible with the resources available.94 This wording is very similar to the wording of article 2 of the ICESCR that sets out the duties of states that are party to the Covenant. The Constitutional Court has developed guidelines that can assist in understanding what is meant by the duty to “take 2004. Measuring human rights: Principle, practice, and policy. Human’ Rights Quarterly, (26):908-931, 906. 90 Mubangizi JC 2004. Protection of human rights in South Africa: public awareness and perceptions. Journal for Juridical Science, 29(1): 62-87. 91 Ebi 2016:123. 92 Kende M S 2003. The South African Constitutional Court's embrace of socio-economic rights: A comparative perspective. Chapman Law Review, (6):137-160, 139. 93 Sec 27(2) of the constitution. 94 De Vos et al 2015: 684. 28 reasonable measures”, which includes the obligation of the government to involve the public in developing critical social policies or legislation.95 Concerning the socio-economic rights in sections 26(2) and 27(2), the government is mandated to take legislative and other measures to ensure that the entitlements imposed by the rights are progressively realised.96 The government thus holds the primary mandate to engage in policy formulation and in decision-making about the progressive realisation of these rights. The government has to provide coherent and flexible plans and measures to make these rights achievable. The plans must include concrete targets and goals that are linked to timeframes. This allows the government to plan and monitor its own progress. In addition, proper planning helps human rights organisations such as the SAHRC, non-governmental organisations (NGOs), and the general public to monitor and hold the government accountable to its commitment to ensure the realisation of socio-economic rights.97 However, Ngang poses a pertinent question about what would happen when the government fails to live up to expectations in response to the constitutional duty to enforce the socio-economic rights, but instead uses its powers to subjugate the people.98 The Constitution contains all the answers. Section 8(1) orders the judiciary to ensure that the rights contained in the Constitution are fulfilled.99 In addition, all the branches of the government are bound by the Bill of Rights to fulfil human rights. Section 34100 states that everyone should have access to courts. This is applicable where individuals, groups, or the community feel that their rights are violated or not met. Section 38 101 also allocates extensive remedial powers to the courts to provide appropriate relief when an infringement or threatened violation of a right is established.102 95 Khoza 2007: 37. 96 Sec 26(2) and 27(2) of the Constitution. 97 Khoza 2007: 40. 98 Ngang 2014: 662. 99 Sec 8(1) of the Constitution. 100 Sec 34 of the Constitution states that ‘[e]veryone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum’. 101 Sec 38 of the Constitution states that ‘[a]nyone listed in this section has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief, including a declaration of rights’. 102 Ngang 2014: 663. 29 2.5 Conclusion This chapter has examined the content of the rights to adequate housing, health care, food, and social security. Access to adequate housing, health care, food, and social security are some of the most significant human rights that have the potential to restore human dignity and, consequently, human well-being. These rights are protected in many international human rights instruments such as the UDHR and the ICESCR, in regional instruments such as the African Charter on Human and Peoples’ Rights, and in the South African Constitution. These rights also interlink with other human rights, including civil and political rights. As affirmed in the UDHR, human rights are indivisible, interrelated and interdependent. Thus, they ought to be respected, protected, promoted, and fulfilled equally and simultaneously. However, with many socio-economic issues experienced by South Africans, particularly by the poor black communities, one would question the government’s role in respecting, promoting, protecting, and enforcing these rights. The following chapter focuses on the RBAD. It explains how the adoption of such an approach could enhance development and increase the realisation of socio-economic rights in South Africa. 30 CHAPTER 3: THE RIGHTS-BASED APPROACHES TO DEVELOPMENT 3.1 Introduction Human rights and development have been understood as diverging notions with no compatibility for an extended period of time.103 Historically, development was only considered for its role in advancing the economic growth and wealth of individual countries; it had no connection with human development and well-being. In 1945, development became a central theme of the UN after the adoption of the UN Charter and, for the first time, of the international community.104 Furthermore, the link between human rights and development was acknowledged.105 Human development became central to the realisation of human rights. After many years of the development and the human rights debate, it was agreed that human rights standards and principles are indeed reinforcing. In the 1990s, an RBAD106 emerged and changed the global order of development.107 In this chapter, it is argued that in the quest for improving living conditions of the poor and marginalised (the informal dwellers), human rights and development cannot be understood as separate notions. Furthermore, it is argued that development and human rights share the same goals namely, to promote the dignity and worth of a human being by creating an environment in which people can reach their full potential.108 To critically examine the significance of an RBAD, it is important to understand the process that leads to its emergence. Section 3.2 of this chapter examines the convergence between human rights and development, Section 3.3 provides the definition and underlying principles inherent to an RBAD, while Section 3.4 examines the advantages inherent to an RBAD. To evaluate the significance of such an 103 Sano HO 2000. Development and Human Rights: The Necessary, but Partial Integration of Human Rights and Development. Human Rights Quarterly 22. 734–752, 739. 104 Jackson P 2007. A Prehistory of the Millennium Development Goals: Four Decades of Struggle for Development in the United Nations. United Nations Chronicle XLIV(4):7-9, 7, 7. 105 Uvin P 2007. From the Right to Development to the Rights-based Approach: How “Human Rights” Entered Development. Development in Practice 17(4-5):597-606, 597. 106 Marks SP 2003. The Human Rights Framework for Development: Seven Approaches. Reflections on the Right to Development. India: SAGE Publications.1-29, 5. 107 Sano 2000: 751. 108 Marks 2003: 1-2. 31 approach accurately, Section 3.5 explores the limitations and critique that have been raised against the RBAD. 3.2 The convergence between human rights and development After many years of discussions about the relationship between human rights and development, an RBAD came into existence. The emergence of an RBAD has resulted from the recognition of the link between human rights and development. Human rights became a central factor in bringing about a socially oriented order.109 Development was perceived as a process of change and human rights were suited to give meaning to the process of change by incorporating human rights, norms, obligations, and principles to influence the outcome of development programming.110 The inclusion of human rights, norms, standards, and principles was recognised in the 1990s as a significant aspect to advance development policies and planning. It was argued that human rights had the capacity to influence policy content and to provide a conceptual framework for guiding development and execution. Since then, the RBAD has gained global recognition and it has extended over the years as a vital developmental tool for promoting human development and well- being.111 Darrow and Tomas112 reminds us that integrating human rights, norms, and standards into development is fundamental and that their integration will enhance the potential of enjoying human rights in the development process. The link between human rights and development was first formally recognised in article 22 of the African Charter, which was adopted in 1981. 113 Moreover, the UN Declaration on the Right to Development (DRD) recognised development as an inalienable human right. According to the Declaration, development is defined as [a]n inalienable human right under which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural, and political development, in which all human rights and fundamental freedoms can be fully realised.114 109 Sano 2000: 740-741. 110 Banik D 2010. Support for Human Rights-based Development: Reflections on the Malawian Experience. The International Journal of Human Rights 14(1):34-50, 37-38. 111 De Man 2019:460; UNDP 2000: 21. 112 Darrow & Tomas 2005:501. 113 African Charter on Human and People's Rights (adopted in 1981 and entered into force on 21 October 1986). 114 Declaration of the right to development. 32 The right to development integrates the norms, standards, and principles of the international human rights systems into development policies and processes. Thus the right to development has given meaning to the notion of people-centred development and human empowerment.115 In addition, the right to development emphasises the primary role of the government in creating favourable conditions for the realisation of the right to development at national and at international levels.116 In other words, the essential aim of this right is to achieve the highest standard of living at a local level through support from national and international development actors. 117 This includes fulfilment of the right to adequate housing, healthcare, food, and social security and the right to equitable benefit from development processes that improve human freedom, well-being and to realise their value.118 Article 2 of the DRD recognises that “[t]he human person is the central subject of development and should be an active participant and beneficiary to the right to development”.119 Although development has gained a new tone from the recognition of the right to development as a composite and multifaceted human right compatible with other human rights.120 The right to development and human rights-based approach appear to be mutually reinforcing and may have positive effect if properly developed.121 The realisation of the right to development requires the implementation of a rights-based approach. The two notions puts the individual in the center of action for realisation of their rights. It stresses that individuals and peoples in the process of development should be viewed as subjects, but not objects.122 For example, people are entitled not only to participate effectively in consultation processes for the implementation of development policies to be applied, but also to make their own contribution to the 115 Marks 2003: 15. 116 Piovesan & Fachin 2018:2. 117 Ngang CC & Ageh PA 2019. Intellectual property protection of African traditional medicine within the legal framework of the right to development. African Journal of International and Comparative Law, 27(3):426-445. 437. 118 Sengupta A 2001. Right to development as a human right. Economic and Political Weekly Vol. (36). 27, 2527-2536, 2529; Osmani SR 2000. Human Rights to Food, Health, and Education. Journal of Human Development 1(2):273-298, 120. 119 Seabrook J 2009. The no-nonsense guide to world poverty. Oxford: New Internationalist. 27. 120 Piron LH 2002. The right to development: a review of the current state of the debate for the department for international development, 31. 121 Hayrapetyan A 2011. The Right to Development and Rights-Based Approach to Development: Two Mutually Reinforcing Concepts?. European Union Foreign Affairs Journal, 32. 122 Hayrapetyan 2011:41. 33 establishment of their own development policies in the form of active involvement in decision-making.123 This involvement enables the government to reshape and apply human rights norms and standards in the implementation of any development agenda in the territory of its jurisdiction in accordance with national development policies.124 However, critiques argue that the right to development has limited powers to bring about effective change. This is because the right to development as it is formulated in the Declaration, is non-binding and it carries no legal obligations at international level.125 For example, the right to development have no clear textual presence in many constitutions including that of South Africa. 126 Though the South African 1996 Constitution does not mention the right to development as a human right, however, the Bill of Rights guaranteeing socio-economic rights comprises the protection of the right to development.127 In 1995, the relationship between human rights and development was sustained after the publication of The Rights Way to Development128 by the Human Rights Council of Australia. It considered development activities as an integral part of human rights work.129 In support of these views, article 10 of the 1993 Vienna Declaration of Human Rights,130 recognises that development forms part of the human rights framework. Moreover, during the 1990s human rights proponents argued that the creation of opportunities for people and groups to participate in development is a human right. Furthermore, human rights and development work closely together in various aspects concerning the same target groups to advance human development and the well- being of people. To some extent, both human rights and development seek to empower those who are excluded and disadvantaged by processes that affect their lives. Thus, the link between human rights and development is understood to create 123 Hayrapetyan 2011:41. 124 Hayrapetyan 2011:33. 125 Uvin 2007:598; Sano 2000:738. 126 Shai I 2019. The right to development, transformative constitutionalism and radical transformation in South Africa: Post-colonial and de-colonial reflections. African Human Rights Law Journal, 19(1):494-509, 507. 127 Kamga SD 2018. The right to development in the African human rights system. Routledge, 210. 128 Human Rights Council of Australia (eds) 1995. The Rights Way to Development: A Human Rights Approach to Development Assistance: Policy and Practice. 129 Human Rights Council of Australia 1995. 130 Declaration, Vienna Programme of Action 1993. UN GAOR. In World Conference on Human Rights, 48th Session, 22d plenary meeting, UN Doc. A/CONF (Vol. 157, 24). 34 conditions in which human rights can be realised.131 For example, human rights are not only recognised to protect individuals and groups against those in power but they also oblige the government to create decent living conditions for citizens.132 3.3 The rights-based approach to development: Definition and principles 3.3.1 Definition of a rights-based approach to development The RBAD was formally recognised at the1993 Vienna World Conference on human rights in that “development and respect for human rights and fundamental freedoms are interdependent and mutually reinforcing”. 133 At the conference, it was also reaffirmed that all human rights are of equal worth, validity, and that they are interconnected. The recognition of human rights principles such as participation, equality and non-discrimination as well as accountability in the area of development, laid the foundation for the emergence of the RBAD (also referred to as development based on human rights).134 The RBAD has been defined in many ways. On the one hand, Gauri and Gloppen135 define an RBAD as principles that justify demands against privileged actors and that are made by the poor or by those acting on their behalf using national or international instruments to protect the disadvantaged. On the other hand, Darrow and Tomas define an RBAD as “a framework for understanding and managing the negative impacts of discrimination and disempowerment, not a one-dimensional and static formula”.136 In addition, the UN Research Institute for Social Development defines an RBAD as “[a] conceptual framework that is capable in all development fields, and that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights”.137 The RBAD treats international human rights law as an essential conceptual framework which is accepted by the international community and which can give a coherent 131 McInerney-Lankford 2009 53. 132 Sano 2000:741. 133 World Conference on human rights (1993) at para 8; Payne & Phillips 2010:122. 134 Darrow & Tomas 2005:497. 135 Gauri & Gloppen 2012:3. 136 Banik 2010:38. 137 UN Research Institute for Social Development (UNRISD) 2016. The human rights-based approach to social protection “Issue Brief 2”. Geneva, 1. Available at https://www.unrisd.org/unrisd/website/document.nsf/(httpPublications)/1E57FC1E56010C2CC 125801B004B0D10?OpenDocument (accessed on 02 September 2020). https://www.unrisd.org/unrisd/website/document.nsf/(httpPublications)/1E57FC1E56010C2CC125801B004B0D10?OpenDocument https://www.unrisd.org/unrisd/website/document.nsf/(httpPublications)/1E57FC1E56010C2CC125801B004B0D10?OpenDocument 35 system of principles and norms in the development arena.138 Following this approach, principles such as equality and non-discrimination are included in developmental policies and strategies.139 Therefore, development plans, policies, and projects that are anchored in a system of human rights will correspond with obligations established in international law. Uvin asserts that an RBAD motivates a redefinition of the nature of the problem. In addition, the aims of the development initiative, when translated into claims, duties, and mechanisms, can promote respect and determine the violation of rights. 140 The protection of human rights helps in: promoting sustainability; empowering the marginalised; participating in policy development; an holding those who must act accountable.141 The 2003 UN Statement of Common Understanding also confirms that all UN development programmes have sought to further the realisation of human rights as laid down in the UDHR and in other international human rights instruments.142 3.3.2 Principles of the rights-based approaches to development 3.3.2.1 Participation For a full implementation of the human rights framework for development, participation of people affected by development is compulsory for planning and decision-making. The nature of participation as a human right means that the government has to encourage, promote, and ensure free, meaningful, and active participation of all individuals and groups in the execution and evaluation of the development process.143 Participation can be used as a method to measure and identify needs and priorities at the local level. This also includes political participation, which requires institutionalised participation such as periodic elections and social participation. It also affords people 138 Abramovich 2006:34; Mclnerney-Lankford 2009:73. 139 Abramovich 2006:35. 140 Uvin 2007:602. 141 Abramovich 2006:36-37. 142 3-5 May UN 2003. The human rights–based approach to development cooperation: towards a Common Understanding among UN Agencies. Interagency Workshop on a human rights– based approach. Available at https://unsdg.un.org/sites/default/files/The_Human_Rights_Based_Approach_to_Developmen t_Cooperation_Towards_a_Common_Understanding_among_UN.pdf (accessed on 02 September 2020). 143 Piovesan & Fachin 2018:4; Filmer-Wilson 2005:216-217. https://unsdg.un.org/sites/default/files/The_Human_Rights_Based_Approach_to_Development_Cooperation_Towards_a_Common_Understanding_among_UN.pdf https://unsdg.un.org/sites/default/files/The_Human_Rights_Based_Approach_to_Development_Cooperation_Towards_a_Common_Understanding_among_UN.pdf 36 the opportunity to exercise certain essential rights such as the right to association and assembly, freedom to unionise, and freedom of speech and information.144 For effective participation, essential preconditions should be met and human rights should be fulfilled. Citizens should be equally empowered to claim their rights and they should be given a chance to partake effectively in decision-making processes that affect their lives.145 For example, they could be active in planning, designing, and executing programmes aimed at meeting their needs. In following an RBA, organisations and other duty-bearers shift from being executors to being facilitators of the development process.146 The power of the marginalised lies in the strength to participate in their development process, because being able to influence the development process puts the poor and marginalised in a better position to assert their socio-economic rights. Finally, not only should participation contribute to the success of development programmes, it also “involves conflict, and demands a capacity to analyse, negotiate, and alter unequal relations at all levels”.147 It should therefore be understood as a process of nurturing fundamental consciousness and decision-making as the basis of active citizenship. 3.3.2.2 Empowerment An RBAD aims to achieve empowerment through the recognition of rights. It is believed that once this concept has been implemented in a policy context, the focus of policy-making will not be limited to a specific portion of the society with unmet needs. Rather, it will include all who have enforceable rights.148 Empowerment is a process of increasing interpersonal or political power so that individuals, families, and communities can take action to improve their situations. It guarantees the freedom of all to enhance their choices.149 144 Abramovich 2006:43-44. 145 Osmani 2000:122. 146 Filmer-Wilson 2005:218-219. 147 Darrow & Tomas 2005:506; Kindornay S, Ron J & Carpenter C 2012. Rights-based approaches to development: Implications for NGOs. Human Rights Quarterly 34(2):472-506, 477-480. Available at http://muse.jhu.edu/journals/hrq/summary/v034/34.2.kindornay.html (accessed 22 May 2020). 148 Abramovich 2006:36-37. 149 Uvin 2007:601. http://muse.jhu.edu/journals/hrq/summary/v034/34.2.kindornay.html 37 An RBAD strives to restore dignity and respect for the inherent worth of individuals, groups, and communities affected by poverty.150 The empowerment of disadvantaged and excluded sectors in the community comes from the recognition of their rights with corresponding legally binding obligations to the government.151 An RBAD empowers people to claim their entitlements because “what was once understood as ‘charity’ becomes ‘justice’ from the corresponding duty-holder”.152 Therefore, people are no longer human beings “with needs who receive welfare benefits or other forms of discretionary provision, but possessors of rights who have the legal and social power to demand certain forms of behaviour from the State”.153 Darrow and Tomas maintain that empowerment suggests the following variety of programme priorities: 1. Education and access to information 2. strategies for inclusion and participation in decision making and local and national level priority setting 3. accountability of government officials, public employees, and private actors, and 4. the building of local organisational capacity.154 The recognition of rights means establishing legal measures to enable their holders to strive for redress if these are not fulfilled by the duty-bearers and to be able to hold the duty-bearers accountable.155 In other words, the possessors of the rights will be empowered in a way that can restore balance in social situations that manifest noticeable inequalities.156 3.3.2.3 Equality and non-discrimination Inequality and discrimination is a major global crisis. However, the human rights framework brings to the development process the principle of equality and non- discrimination to ensure fair and balanced development programming. The government is required to not only commit to non-discrimination but also, to some degree, adopt affirmative measures to guarantee the inclusion of population groups or sectors that have traditionally been discriminated against.157 150 Filmer-Wilson 2005:217-218. 151 Abramovich 2006:34. 152 Filmer-Wilson 2005:217. 153 Abramovich 2006:38, states that ‘people with needs who receive welfare benefits or other forms of discretionary provision, but possessors of rights who have the legal and social power to demand specific forms of behaviour from the State’. 154 Darrow & Tomas 2005:494-495. 155 Gready 2008:736. 156 Abramovich 2006:38-39. 157 Abramovich 2006:43; Gasper 2004:1-2. 38 Several international human rights instruments give guidelines for the promotion of equality and non-discrimination. Article 2 of the UDHR declares that everyone is free to claim their rights without any denial based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.158 Resembling statements can be drawn from the International Covenant on Civil and Political Rights (ICCPR)159 and from the ICESCR.160 Moreover, article 20(2) of the ICCPR and article 10(3) of the ICESCR emphasise commitment to reject any form of discrimination in the recognition, promotion, and protection of all human rights.161 The principle of equality and non-discrimination places the focus on vulnerable individuals and on groups such as women, children, and refugees.162 The government has to establish regulations that will protect its citizens against discrimination and it has to adopt exceptional measures that involve active protective policies. 163 Programmes seeking to empower local people should be clear and they should safeguard against potential discrimination between among others, women and men, landowners and peasants, and workers and employers.164 158 Universal Declaration of Human Rights (adopted on 10 December 1948), Art 2 states that ‘[e]veryone is entitled to all the rights and freedoms outlined in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’; United Nations High Commissioner for Human Rights (UNOHCHR) Economic, social and cultural rights: annual report 2004 implementation of activities and use of funds, 143. 159 International Covenant on Civil and Political Rights (adopted on 16 December 1966 and entered into force on 23 March 1976). (http://www.ohchr.org/Documents/ProfessionalInterest/cescr.pdf). 160 International Covenant on Civil and Political Rights (adopted on 16 December 1966 and entered into force on 23 March 1976), Art 2(1) states that ‘[e]ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. International Covenant on Economic, Social and Cultural Rights (adopted on 16 December 1966 entered into force on 3 January 1976), Art 2(2) states that ‘[t]he States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’; Oberleitner G 2006. ‘International human rights Lexicon’. The Modern Law Review, Vol. 69, No. 6. 1035-1037. Available at https://www.jstor.org/stable/4123375 (accessed 11 July 2020). 161 Smith & Van den Anker 2005:269-272; Art 20(2) states that ‘[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law’. (ICCPR); Art 10(3) states that ‘[s]pecial measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions’. (ICESCR). 162 Abramovich 2006:42. 163 Osmani 200