Striking the balance in public decisions

Simon Nzioka

Article 11(1) of International Covenant on Economic Social and Cultural Rights (ICESCR) provides for the right to adequate standard of living, which includes the right to adequate housing. This article provides imperative obligations upon state parties to ICESCR, yet they are barely observed in relation to development initiatives. Often, states, in finding land for the installation of housing facilities, cause displacement of vulnerable people in the society – most of the time against their will – resulting in forced evictions to pave way to these installations. These displacements result to massive violations of the individual’s rights in particular the right to housing.

To undertake development while respecting right to housing, International Human Rights Law (IHRL) provides for participation by right-holders in decision-making process to maintain a balance between the two. Practice reveals a different view with states prioritising development at the expense of right to housing hence forced evictions occurring each day due to development and modernisation. This begs the question on whether participation as envisaged by IHRL is the right tool to deal with development related evictions and if so, whether it has been able to achieve the expected results. Further question is on whether the standard created by IHRL framework on participation can offer solutions to development-based evictions.

Key aspects of participation

The broad nature of participation accommodates different interpretations to fit in different circumstances, hence the need to understand the form of participation being pursued. This is possible by examining the purpose, objective and level of engagement. Participation, when used as a formality to seek legitimacy and as a public relations exercise, is known as nominal participation. This form of participation is highly criticised as it does not anchor the objective of empowering the most vulnerable in the society to handle, defend and protect their rights in any discussion. The second form of participation is known as instrumental participation, which offers little or no options for meaningful negotiations. This occurs through broader interpretation to include ideological or political concepts which may not necessarily be promoted by participation, thus allowing tyrannical issues to mask it. The third form is representative participation, which offers people the ability to express and vindicate their interests through conceptualisation of citizenship and the appreciation of people as stakeholders in development rather than consumers and recipients of government’s services. The fourth and the desired form of participation is known as transformative participation, which occurs when participation becomes a tool for social change in society by empowering people to overcome challenges of marginalisation, exclusion and discrimination to become key players in development. This involves an understanding and full appreciation of the underlying societal problems and challenges with the ability to utilise participation meaningfully to contribute to development agendas thus providing working solutions to peoples’ challenges.

Information is an important component of participation as it brings to the attention of right-holders issues which affect their rights, enables them to prepare for discussions, and put them at par with other stakeholders in terms of knowledge base. This involves acquisition and transmission of knowledge to rights-holders, and the ability to utilise such knowledge to contest issues and negotiate settlements.  This is a component of the freedom of expression which includes the right to seek, receive and impart information. The information should be adequate in terms of human rights law and policies relating to the issue in question such as forced evictions. This means that it should be “objective, complete, relevant, easy to find and easy to understand”. It should also be delivered to the most vulnerable and in a culturally appropriate way.

Participation in policy making

The question of who participates and at what level in the participation process is important because it determines whether there is an overall objective of empowering the most vulnerable people. This is important because the chosen form of participation as well as its level can cause more violations of rights through further discrimination, exclusion and marginalisation. It is imperative to analyse important aspects such as whether participants are true representatives of the people, whether they have space to voice their interests or concerns and if so, whether such interests are borne in mind as options in arriving at the overall decision. Participation assumes discussion between all stakeholders in an open manner, which is possible through guarantees to other rights such as accessibility to relevant information to all stakeholders, freedom of movement, freedom of assembly, freedom of expression and so on. The overarching notion is that participation and rights are interconnected with the attribute of empowerment being essential for rights attainment.

Participation enables citizens to get involved in matters concerning them which are essential for social transformation. Right-holders’ active participation brings out important aspects in policy formulation as they consider what is important to them as taxpayers, they prioritise important issues as rights-holders and they weigh collective benefit of the public good as members of the community. Through participation, “…citizens are often better placed than politicians or public servants to identify policy priorities, reconcile conflicting values and work out what choices are more consistent with their community’s values.” Active participation in policy formulation transforms the political, social and cultural extremes responsible for human rights violation into valuable opportunities for human rights fulfilment. Participation thus ensures that both the process and outcome of development are human oriented and responsive to the particular underlying societal challenges.

Decision-making in dev’t projects

Some economic proponents argue that the influence on economic growth by social and cultural factors is vague, based on the fact that cultural and social systems remain “polyhedral entities, difficult to capture in formal models”. Social cultural aspects are thus relegated to the periphery of considerations. Many governments adopt neo-classical economic policies in the decision-making process, which emphasise on giving more consideration to the economic dimension of a particular project over human rights realisation thus leading to major violation of fundamental rights especially for the most vulnerable people. The assumption is that rapid economic growth lifts up people from poverty where winners compensate losers in other measures such as taxation and public expenditure. The underlying guideline in this thinking is that “the goal of economic growth cannot be substituted with the goal of realising human rights”. This ensures that not all stakeholders are involved in decisions having economic dimensions though heavily impacting on human rights. The place of participation of rights-holders in such decisions is thus marginally excluded.

Many economic policies view citizens as consumers of government services rather than active participants in economic growth; as a result, their ideas are often disregarded. Closely related to this analogy is the aspect of representation whereby government claims legitimacy of being elected to represent the people thus fitted to make crucial decisions on behalf of its citizens. This is, however, entangled by many hindrances in that elected leaders usurp power in an indication of true representation, which may not be the case as leaders’ views may not be a representation of the majority people’s interests leave alone the most vulnerable people’s interests.

An advanced analogy is that most economic plans and proposals are better handled and made in the exclusion of many interests thus making it easy to move from one stage to the other. Proponents of this view indicates that allowing participation is like opening a can of worms as people with divergent ideas may prevent government from acting timely and decisively. In this analogy, participation becomes nominal by being relegated to one sided “consultation”, where government dictates the terms of the “consultation”; in other words, it fails to empower the vulnerable but becomes a tool for coercion and control. With key state’s policies tailored on economic growth, it is upon the law to ensure that the required balance is maintained by ensuring that the role of human rights in policy making is recognised by governments not solely through their obligations under IHRL but as an important component for inclusive development.

Power relation factors

Some scholars view development as a political concept emanating from the international spectrum requiring political engagement both at the national and international levels. States give little or no attention to individual concerns when they view development in terms of the State’s development, represented by the increase in Gross Domestic Product (GDP). This makes it possible for development to be interpreted basically as economic growth. The issue of determination of what development projects to be initiated in what area then is said to be a matter of public interest whose custodian is the government. This in turn affects most of the social-economic rights in that often, economic growth may be in diametric opposition.

Participation in many times is criticised for failing to engage fully with political factors and power dynamics, thus leaving citizens at the mercy of states. Its ability to accommodate broad ideological thinking allows it to be used by governments as a matter of formality where agenda are given and driven by government. Whereas the state will be happy to use this kind of participation to seek legitimacy of its agendas while fostering its power relations, the right-holders are ultimately the losers when the underlying issues affecting them such as poverty, illiteracy, lack of awareness, marginalisation, and exclusion are not addressed. Many states are not happy to have engagements leading to empowerment of the people as this turns the power relation equation in which many of their political and power ideologies thrive. When participation leads to ability to understand the underlying causes of the problems affecting the community, the ability to question some of the ideologies put forward by the leadership, the ability to defend rights as well as the ability to disagree with certain ideologies which are against human rights, it causes a major shift in the political and power equation. It presupposes a people-driven thinking, governance and leadership, and can potentially end political self-interest. This means an end to utilisation of development projects for personal and political benefits whereby the economic good of development is taken over for political benefit and manipulations.

The ability to localize participation to a single end thus serving an intended objective as well as the ability of the state to make most considerations affecting participation such as the level of engagement, the process, participants as well as the content of participation makes participation more of a control and coercion tool rather than transformative tool.

The localist approach ignores broader patterns of social injustices thus failing to engage fully with the underlying issues in the development process. This approach assumes participation to be a technical tool of project work thus ignoring the people who need to benefit from various development projects and thus allows itself for political abuse.

The right to housing and the right to development pose a real threat to each other if there is a lack of proper rights based policies governing undertaking of development while observing the prohibition on evictions. The obligation to protect individuals from forced evictions through appropriate policies lies with the state as observed in “SERAC v. Nigeria Case”. The UN Committee on Economic Social and Cultural Rights (CESCR) in its General Comment 7 indicates that…“States parties shall ensure, prior to carrying out any evictions, and particularly those involving large groups, that all feasible alternatives are explored in consultation with the affected persons, with a view to avoiding, or at least minimising, the need to use force.”

The failure by participation to achieve its objectives has been contributed by gaps in its conceptualisation and in the legal framework such as capacity, incentive and power gaps. It is expected that legal framework should contribute to the bridging of the power gap through requisite provisions on participation to enable discussions on equal footing emphasising on the protection of the most vulnerable.

Conceptual challenges

One author describes globalisation as “…a phenomenon promoted by powerful forces with potentially enormous consequences for housing law, policy, and rights.” A clear framework protecting the right to adequate housing is necessary based on the foregoing understanding. The standard expected of states is elaborated by the UN Basic Principles and Guidelines on Development Based Evictions (herein the Basic Principles). This followed CESCR identification of development as a major cause of forced evictions. The Basic Principles provides a two-tier system of protection on the principle of participation. It provides that “Urban or rural planning and development processes should involve all those likely to be affected and should include the following elements: (a) appropriate notice to all potentially affected persons that eviction is being considered…(b) … (c) a reasonable time period for public review of, comment on, and/or objection to the proposed plan”
The first tier of the Basic Principles which require that planning and development processes to involve all those likely to be affected engages the political factors in decision-making process on the right to housing. The second tier provides a protection mechanism during eviction. Effects of globalisation and development are addressed by the right “…to full participation and consultation throughout the entire process…”. However, the unpacking of what “the right to full participation and consultation” means misses the objective of protecting and promoting the right to housing by presenting a weak framework which fails to interrogate and engage fully with the concept, process and cause of forced evictions.

There is no elaboration on what full participation means and what it entails and hence the framework fails in providing substantive guidance. The interpretation of the “entire process” as the time “prior, during and after” eviction clearly misses a crucial period and which is when the decision on development is being made.  It only provides for those likely to be affected to review, comment and/or object to a proposed plan. This approach therefore does not allow right-holders to participate in decision-making processes leading to development plans, but reduces participation to mere consultation by states after decisions have been made. It allows for states to make decisions affecting the right to housing without involving right-holders and thereafter consulting them, which makes such consultation meaningless as the same is less likely to affect the initial decision. This, however, is based on the operative key word in CESCR General Comment 7 which is to “consult”, and which does not give the needed weight on participation of right-holders as a right but places the same on a need basis.

The “respect” obligation of states in relation to the right to housing is construed as a negative obligation not to carry out evictions without affording necessary legal and other protection measures to the persons affected. This entails “respect” to measures adopted by state to ensure access to adequate housing. IHRL framework recognises participation after the decision, thus failing to adequately protect the right. In this way, more forced evictions will be witnessed because the framework on participation does not give right-holders the opportunity to challenges development decisions from the onset.

The interpretative words in the Basic Principles of “review, comment and/or object” do not make the situation different as they do not place right-holders as active participants in the planning process. These interpretive words do not empower rights holders as they fail to offer them more options to utilise in protection of their right to housing at the onset. At a more pragmatic level, states may oppose citizen participation because it will be seen as time consuming, expensive, and complicated, and will have little or no impact on the earlier decision made. This is because the legal framework packages participation on a need basis rather than right-based, which subjects the right to housing to state’s wishes rather than being an obligation.

Another concern on the participation is whether rights holders have the ability to veto the decision by the state. In “Center for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya”, the African Commission upheld the importance of consultation, indicating that the threshold differed according to the nature of the community and how it related with its territory. This holding follows the provisions of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIPs) which provides a clear basis for participation by calling for “free, prior, and informed consent” to be obtained by states. The standard set by UNDRIPS of “free, prior, and informed consent” is comparably higher than that set CESCR of simply “to consult”. In the case of “Residents of Joe Slovo Community v. Thubelisha Homes and Others”, the applicant community engaged South Africa on its compliance to minimum essential requirements to ensure their adequate standard of living was maintained in a planned eviction. The foregoing cases demonstrate the importance of active participation which is crucial if taken at the time of policy formulation as it ensures that the state conforms to its obligations while discharging public duty on state’s development.

The Basic Principles indicates that right holders can “object” to the proposed plan. It remains to be seen in reality how objection to decision which has already been made can be actualised. Whereas the principle of good faith is in most times called to aid how far the stretch in the discussion can go, the thin line between good faith and politics blurs the divide especially from the state’s view.

Several states contest vital rights to some communities such as that to cultural life, minority and indigenous issues, and as such demonstrate that good faith, which is a subjective test, may be a bad option to rely on. Further, these projects carry enormous economic capital from different stakeholders and the expectation of boosting economic growth is overwhelming. This makes states and other stakeholders not to give emphasis on participation bearing in mind the soft stand taken by the Basic Principles.

Practically, objection to a decision already made can be construed as opposition to the government’s policies and can be dealt with through forceful measures by the state. To object such a decision may seem like a far-fetched solution to a vulnerable community and may be unwise to take in many circumstances. The situation could be different if the participation was initiated at the first point of planning as the community would have the confidence to air their views freely while weighing all issues concerned. Objection at that stage is possible and easy step to take since no decision has been made thus people will not feel intimidated or afraid of being seen as opposing the state. This is the best platform for empowerment and also provides a more protective mechanism to the right-holders. It is important for participation to be framed at such a level without leaving it to the political leaders. The “International Movement ATD Fourth World v. France” complaint pushed the Europe Committee of Ministers to adopt a resolution with an obligation to state parties to involve persons to be affected by eviction under article 31 of the European Social Charter in processes leading to decisions on development. This is a demonstration of political will by states individually and collectively but where such lacks, then participation is doomed to fail as IHLR framework is generally weak in engaging with political factors.

Conclusion

The UN Committee on Economic, Social and Cultural Rights (CESCR) suggests a myriad solutions to development based displacements with participation adopted as a perceived balance to ensure inclusive economic growth. The overall objective of participation as a tool and as a process is to empower people in their different capabilities to be able to realize their full potential by utilizing their different capacities to better their lives. Participations ought to be seen as a shield as well as a sword in the hands of the people.

The use of indicators is widely acknowledged as a means to protect and promote human rights. Several indicators have been developed by different agencies being a response either to an eviction that has taken place or an impending eviction whose decision has been made. It is important to think of indicators that will assist right-holders in engaging and questioning the underlying reasons for any eviction and to give them a level field aimed at preventing any eviction as far as possible unless the same is in the exceptionally unavoidable as provided by IHRL.

Writer is an Advocate of the High Court of Kenya and a Human Rights practitioner.

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