OPERA in South Africa: How Strategic Litigation + Strong Data = Better Implementation

English
By Allison Corkery and Terry Roethlein
 
In a new case study, the Center for Economic and Social Rights (CESR) and the Legal Resources Centre (LRC) reflect on a joint project piloting the use of the OPERA framework to analyze implementation in a case on the right to education in South Africa. 
 
Opera in Practice: Strengthening Implementation of Strategic Litigation in South Africa reflects on CESR/LRC piloting of OPERA in Madzodzo v Department of Basic Education, a case about chronic school furniture shortages that was brought by the LRC on behalf of the Centre for Child Law and a number of schools. In Madzodzo, the South African High Court declared that the government’s failure to address protracted delays in providing desperately needed desks and chairs to schools in the Eastern Cape was a violation of the Constitution’s protection of the right to a basic education. However, various rounds of litigation – resulting in multiple agreements, extensions, and a decision from the High Court – had not produced the desired results. 
 
Madzodzo reflects a broader trend in socio-economic rights litigation in South Africa over the past 20 years that has seen courts increasingly ordering “dialogic” remedies—meaning the responsible government agency retains discretion to determine how it will rectify a rights violation. Unfortunately, government agencies have frequently failed to properly implement these types of orders, limiting the transformative potential of strategic litigation on economic and social rights. 
 
“After years of engagement with the education department, thousands of learners continue to spend their days sitting on the floor, or squeezed together at desks that are broken, not designed for their age or otherwise unsuitable,” noted Cameron McConnachie, attorney at the LRC. “In this context, we were eager to explore ways to facilitate more constructive, evidence-based dialogue with the education department, to strengthen accountability for their failure to implement the court’s decisions.”
 
OPERA, which stands for Outcomes, Policy Efforts, Resources and Assessment, is an analytical framework that supports human rights advocates to use innovative methods for collecting, analyzing and presenting evidence of non-compliance with economic and social rights standards. When combined, the four steps enable a more convincing demonstration of the links between policies on paper and their impact on the ground. The Madzodzo pilot explored its potential for identifying quantitative and qualitative indicators to track progress in implementation and for gathering information on those indicators. This information was used to support follow-up legal proceedings, as well as dialogue on implementation, more broadly.
 
CESR and the LRC used OPERA to carry out a rigorous analysis of the documents submitted in the case, finding that up to 40% of all schools in the Eastern Cape were in need of adequate furniture, despite the allocation of approximately R290 million for such goods in the province between 2013 and 2015. Procurement and delivery processes were found to be characterized by irregularities, lengthy delays and poor management. We also found that past solutions failed because they did not address root causes such as poor information management systems on the school, district, provincial and national levels or the absence of furniture as an element in any infrastructure plan for the school system. 
 
Nevertheless, the starkest takeaway from this analysis was the complete unreliability of the education department’s data on school furniture. Our subsequent strategy focused in large part on obtaining better data. We pursued this strategy in a number of ways:
 
by providing detailed recommendations to the national and provincial education departments on how to conduct an effective furniture audit, as well as on improving its information management systems; 
by requesting access to relevant databases maintained by the education departments; and 
by experimenting with mobile messaging platforms for communication while gathering information from schools directly. 
 
Interestingly, the pilot project illustrated that the four steps of OPERA could align neatly with the various components of a judicial decision – a discovery that eventually facilitated significant steps towards compliance. In particular, it provided a cohesive system for categorizing, systematizing and, importantly, identifying gaps in the data that had been submitted in the case. 
 
Systematizing that data, in turn, deepened our understanding of the political and structural limitations inhibiting productive operations within the department. The order made by agreement in February 2016 reflects the significant impact of applying OPERA to the case, in that it set out significantly more detailed obligations than previous orders, in terms of remedial actions to be taken. This has yielded greater visibility of the problem; increased the information available about it; and, importantly, helped identify energetic, dedicated officials willing to engage with it.