December 11, 2017
Allison Corkery's submission to Open Society Foundation's Voices blog.
More than two decades after the end of minority white rule in South Africa, the entrenched inequities and deprivations created under the systematic racism of the apartheid system remain. The struggle to address these injustices has included legal challenges, brought under South Africa’s 1996 constitution, which guarantees a range of economic, social, and cultural rights—including the right to housing, to education and health care, and to food.
But while the courts have handed down a number of progressive rulings, these are frequently not properly implemented. This limits the potential of such strategic litigation on these rights to bring about change.
The 2014 ruling in Madzodzo v. Department of Basic Education, which challenged the lack of proper desks and tables in schools in the impoverished Eastern Cape Province, is a perfect example of the problem. Despite multiple agreements, extensions, and a decision from the High Court of South Africa, many schools still do not have enough desks and chairs. Students are obliged to squeeze together at shared desks, balance precariously on broken furniture, or sit uncomfortably on the floor.
Since 2015, the Center for Economic and Social Rights (CESR) has been working closely with the Legal Resources Center (LRC), a leading South African public interest law firm, to monitor, and hold the government accountable for, the implementation of court orders in the case. A recently released case study, coauthored by the CESR and LRC, reflects on this joint project.
Madzodzo was brought by the LRC on behalf of the Centre for Child Law and several schools in the Eastern Cape seeking to remedy the province’s chronic shortage of school desks and chairs. The court declared that the government’s failure to address protracted delays in providing the desperately needed classroom furniture was a violation of the constitution’s protection of the right to a basic education. However, various rounds of litigation had failed to produce the desired results.
“Thousands of children continue to spend their days at school sitting on the floor, or squashed together at desks that are either broken or the wrong size,” says Cameron McConnachie, attorney at the LRC. “We wanted to get involved in a more constructive dialogue with the education department, based on solid data, to ensure that these students got the resources they need, in line with the court’s ruling.”
The LRC saw potential to pilot the use of the CESR’s OPERA framework as a tool to support the litigation. OPERA’s key innovation is the use of multiple methods for collecting, analyzing, and presenting evidence to assess compliance with economic, social, and cultural rights standards; evidence is organized according to outcomes, policy efforts, and resources, to reach an overall assessment (hence the acronym OPERA).
When combined, evidence on these four dimensions can demonstrate more tangibly the links between policies on paper and their impact on the ground. In the Madzodzo pilot the CESR and LRC used OPERA to identify quantitative and qualitative indicators and analyze data on them to track the progress of implementation and support follow-up action in the case.
A rigorous analysis of the documents submitted in the case revealed a number of alarming facts. Estimates indicated that up to 40 percent of all schools in the Eastern Cape were in need of classroom furniture. There were serious questions about how budgetary allocations had been spent, as procurement and delivery processes were irregular and lengthy delays and poor information management were the norm.
Past attempts to improve the situation failed because they did not address root problems such as poor management systems on the school, district, provincial, and national levels: notably, school furniture was not included as an element in any infrastructure plan for the school system.
However, the starkest takeaway from the analysis was the complete unreliability of the education department’s data on school furniture. A strategy was thus devised that focused primarily on obtaining stronger data to demonstrate to the courts—and to the authorities—the extent of the problems. This helped provide a fuller picture of the political and structural limitations affecting the department’s work. This insight gave the LRC a strong basis to argue for heightened oversight of the department’s compliance with its obligations in the case.
In February 2016, another court order was made by agreement, which set out significantly more detailed obligations for remedial actions to be taken. In particular, it required that the Minister of Basic Education set up a “furniture task team” for Eastern Cape schools and report to the court every 90 days about the team’s progress.
The important role that data has played in the case underlines the observations in Strategic Litigation Impacts: Equal Access to Quality Education, a 2017 publication from the Open Society Justice Initiative and the Education Support Program, which concluded that better use of data could support follow-up in strategic litigation.
The CESR and LRC believe OPERA was instrumental in providing a cohesive framework for categorizing, systematizing, and identifying the gaps in data, which was crucial to support dialogue with the education department. This, in turn, enabled the CESR and LRC to provide detailed recommendations for effective auditing and improvement of information management systems to the national and provincial education departments.
By mid-2017, quarterly reports cited a number of promising developments, including the planned integration of the furniture into a reliable database, advertised tenders for the redistribution of surplus furniture, the placement of orders for 220,438 school chairs, the preparation of bid documents for a tender to repair damaged furniture, and the drafting of guidelines for furniture management in schools.
Litigation is a critical strategy for realizing the right to education and other social and economic rights. But we need new tools to ensure legal victories translate into meaningful action on the ground. We at the CESR are proud to have put OPERA at the service of our partners at the LRC and the school communities of the Eastern Cape. While the furniture saga is not yet over, we are hopeful that the final act will bring lasting improvements in the conditions in which all students there can realize their right to education.