A significant aspect of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which South Africa ratified in 2015, is that governments are required to report periodically on their implementation of the covenant. A body of independent experts, the UN Committee on Economic, Social and Cultural Rights (CESCR), considers these reports and makes recommendations to governments on actions they should take to improve their implementation.
This is a valuable tool for the government and civil society. The international scrutiny the government is subjected to during this process can enhance accountability for its commitment to fulfilling its human rights obligations and alleviating persistent poverty and inequality.
This month, the CESCR is considering South Africa’s “follow-up” on a number of recommendations the committee made in 2018, which it considered “urgent”.
Economic, social and cultural rights are recognised as necessary to live a dignified life, to flourish and to be free of poverty. They include the right to health, social assistance, housing, water, food, work and education. While South Africa has enshrined a number of economic, social and cultural rights in the Constitution, the ICESCR recognises a wider range of rights and offers more detail on how governments need to guarantee them. The ratification of the ICESCR was thus an important victory for people in South Africa.
The CESCR considered South Africa’s initial report in 2018, along with several “parallel reports” submitted by civil society, which offered additional information on progress made and further steps needed. In its “concluding observations” on South Africa, it made a number of recommendations to the government and identified “priority areas” that South Africa needed to address urgently. The government was required to report its progress on the following areas by 2020:
- Develop and regularly update a “composite index on the cost of living”, which is a benchmark used by governments to assess what social security measures are needed for every person to have an adequate standard of living;
- Ensure people with little or no income, between the ages of 18 and 59, have access to social assistance;
- Prioritise the adoption of the Social Assistance Amendment Bill in order to enable an increase of the Child Support Grant for orphaned or abandoned children living with relatives; and
- Ensure access to basic education for undocumented, migrant, asylum-seeking and refugee children.
The Covid-19 pandemic has exacerbated unsustainable levels of hunger, poverty and inequality in South Africa and reinforced the importance of the government treating these four recommendations with the urgency they require.
The government submitted a four-page follow-up report on its progress on these recommendations in May 2021. In response to this report, numerous civil society organisations gave input on each of the four recommendations. Some key points from a number of the submissions are discussed here.
First, the government reported that it was continuing to use the consumer price index (CPI) and considered it sufficient to act as a composite index on the cost of living.
The Studies in Poverty and Inequality Institute made a submission detailing why the CPI does not, and cannot, suffice. It pointed out that the CPI is used to measure how consumer prices change over time, not to calculate the threshold for an adequate standard of living. South Africa has made no progress on this recommendation.
The institute recommended that South Africa use the Decent Standard of Living methodology as a composite index on the cost of living, to meet its obligations to provide people with a decent standard of living.
Second, the government pointed to three steps it had taken to provide social assistance for people between 18 and 59 with little or no income: the furthering of “policy work”, producing a discussion paper, and having discussions on the issue.
The Institute for Economic Justice’s (IEJ’s) submission pointed out that none of the steps constituted concrete progress. It noted that the intended withdrawal of the Covid-19 special relief grant in March 2022 and rejection of the Green Paper on Comprehensive Social Security and Retirement Reform demonstrates that the government is not committed to implementing long-term solutions.
The South African Human Rights Commission (SAHRC), in its submission, noted that the Covid-19 special relief grant is far below the food poverty line, while administrative problems with its implementation are preventing access for millions of eligible people.
The IEJ also highlighted that South Africa has made “deeply irresponsible” cuts to social spending in its medium-term fiscal framework, providing little space to implement a new social security measure. The IEJ concluded it is unlikely that the government can claim it has taken any steps to provide social security to people aged between 18 and 59 with little or no income. The Steering Group of South Africa’s Ratification Campaign noted in its submission that such a state of affairs is unacceptable in the context of the current “humanitarian and economic crisis” in the country.
Third, the government stated that it had passed the Social Assistance Amendment Act 16 of 2020 (the Amendment Act), which grants the social development minister the power to prescribe additional payments attached to the payment of social grants, if the finance minister is in agreement. This now enables the government to provide a higher-valued Child Support Grant to relatives caring for orphaned children.
The Centre for Child Law (CCL) and the Children’s Institute (CI) made a joint submission noting that the passage of the Amendment Act was an important step for South Africa to fulfil the recommendation. However, their submission, and the SAHRC’s, noted that regulations for the top-up grant, although finalised and ready, have not yet been published because there is no budget allocated for their implementation. Simultaneously, there has been a cut in social spending in the foster care grant (which serves orphaned or abandoned children in the care of relatives until the top-up is in place). The centre and the institute noted that this is a “regressive measure” meaning that South Africa is violating its obligations to progressively realise rights of a vulnerable group of children, in terms of the ICESCR, as well as the Constitution.
Fourth, the government said it had made progress in ensuring access to basic education for undocumented, migrant, and refugee children, because the high court had declared regulations and policies impeding access for these children as invalid, and the government had subsequently issued a circular recommending public schools abide by that judgment.
SECTION27, the Centre for Child Law, the Children’s Institute, Lawyers for Human Rights, the Legal Resources Centre and the Equal Education Law Centre made a joint submission noting that the issue had not been resolved at ground level. The joint submission noted there were still numerous complaints from all provinces regarding learners being denied access to education based on documentation status. While formal communication about the court order had been issued to provinces by national Department of Basic Education, many schools are still unaware of the judgment and have not changed their admission policies and practices, continuing to exclude and intimidate undocumented pupils. The provincial online portals also do not provide information and options on how they can apply.
On every recommendation, civil society has raised concerns regarding South Africa’s inadequate or regressive actions. It is hoped that these submissions will guide the CESCR in its determination of whether South Africa has made significant progress on these recommendations in line with its international obligations. The CESCR wraps up its meetings this week and is expected to publish its findings by the end of the month.
Nevertheless, recommendations made by the CESCR regarding what steps South Africa needs to take to adequately address the priority areas can be all too easy to ignore. To make sure they are persuasive in current policy debates, it is important for the public to be informed of the processes which are currently happening regarding South Africa’s follow-up report. As noted in the submission by the SAHRC, South Africa has made very little effort to disseminate the concluding observations or its follow-up report to the public.
The upcoming report from the CESCR should push the government to take meaningful action on these issues. But it’s up to us to make sure that happens. One way we can all do this is by highlighting the CESCR’s recommendations and the government’s obligations in all our advocacy efforts – especially as the government considers the mid-term Budget in November. DM/MC
Ohene Yaw Ampofo-Anti is at the Center for Economic and Social Rights. Paula Proudlock is at the Children’s Institute, UCT. Zita Hansungule is at the Centre for Child Law. Lindi-K Khumalo is at SPII. Mila Harding is at SECTION27. Gilad Isaacs is at the Institute for Economic Justice.