Social audits and the right to sanitation

The City of Cape Town’s response to the Social Justice Coalition social audit into the janitorial service for communal flush toilets in Khayelitsha raises questions about the City’s understanding of the constitutional requirement of meaningful engagement in the context of socio-economic rights.

Sanitation is closely linked to a number of fundamental aspects of human welfare – health, housing, safety and security, privacy and human dignity, and environmental well-being. For this reason, access to safe and hygienic sanitation is internationally regarded as a fundamental human right.

In the South African context sanitation is also closely linked to the right to equality.

The daily hazards to health, safety and psychological well-being resulting from a lack of access to decent sanitation disproportionately affect black people and have especially severe impacts on women and girls, children in general, and people living with disabilities.

As Pregs Govender, Deputy Chairperson of the South African Human Rights Commission, observed in the Commission’s 2014 Report on access to water and decent sanitation: “Those who lack most rights, including water and sanitation in informal settlements or schools, are those were historically deprived of their rights. They remain those who are black and poor.”

Sanitation thus has a direct impact on people’s ability to participate as equals in all aspects of society, and is fundamental to achieving the Constitution’s goals of social justice and a better life for all.

But realising the right to decent sanitation in South Africa’s informal settlements is complex. Challenges include historical backlogs, land tenure disputes, the density of settlements, the suitability of the terrain, the availability of water, environmental impacts, establishing reliable systems for regular cleaning and maintenance of sanitation infrastructure, and community acceptance.

In addition, the provision of sanitation involves many government departments and functions, requiring a high degree of co-ordination and co-operative governance.

In a number of cases the Constitutional Court has emphasised the importance of participatory democracy in realising socio-economic rights. This has occurred primarily through the development of the principle of ‘meaningful engagement’, initially in the context of eviction and housing disputes, but subsequently in the context of other socio-economic rights such as education.

Many legislative and policy instruments also promote citizen participation in service delivery, including the Municipal Systems Act and the Framework for Strengthening Citizen-Government Partnerships for Monitoring Frontline Service Delivery approved by Cabinet in August 2013.

International experience from both developing and developed countries has shown the advantages of that participatory decision-making and monitoring.

First, it promotes human dignity as people are given a voice in decisions that directly touch their lives and well-being. Second, social programmes can be tailored to local contexts and can respond to the actual needs of the community. Third, a broad range of stakeholders can be helped to reach consensus on priorities and to experiment with innovative ways of solving seemingly intractable problems. Fourth, the kind of ‘active citizenship’ encouraged in the National Development Plan can be fostered, and citizens can be encouraged to be active in solving the problems in their community.

As Justice Sachs noted in the Joe Slovo case, meaningful engagement promotes “the reciprocal duty of citizens to be active, participatory and responsible and to make their own individual and collective contributions towards the realisation of the benefits and entitlements they claim for themselves, not to speak of the well-being of the community as a whole.”

The community is more likely to protect and preserve the service if members have been given a say in its design and implementation.

However, meaningful engagement is a process requiring careful planning and nurturing if it is to work in this way.

As the Constitutional Court noted in the Olivia Road case, where large numbers of people are affected local authorities need to put in place systems and processes to enable “structured, consistent and careful” engagement. These systems should include the employment of “competent sensitive council workers skilled in engagement”. Engagement should start early in the policy-making process, and detailed records should be kept.

Successful engagement also requires good faith, inclusiveness, and a commitment to transparency in sharing relevant information. As Yacoob J noted in the Olivia Road case, “secrecy is counter-productive to the process of engagement.”

A high level of organisation, education and solidarity is also necessary if communities are to be empowered to participate as equals with local governments, contractors and technical experts.

The Social Justice Coalition has spent many hours educating community members on various aspects of sanitation, empowering them to conduct social audits of sanitation and refuse removal services in Khayelitsha, convening broad stakeholder public hearings, and seeking information and engagement opportunities with the City.

The report of the social audit into the janitorial service shows the painstaking methodology followed by the SJC in preparing residents to conduct the audit. This work entailed training residents on policy and budgetary frameworks, developing questions and monitoring criteria, capturing the information in collaboration with volunteers, analysing the results, and preparing for a public meeting with the City and other stakeholders to discuss the results and the way forward.

The report on the audit includes recommendations for improving the distribution, health and safety and training of janitors, for better communication with residents regarding the janitorial service and its purposes, for a more clearly defined role for ward councillors, and for improving the fault reporting system for toilets. For example, one problem highlighted through the audit is that it is costly for poor residents to report faults and impossible to report faults for specific toilets in informal settlements through the City’s call centre, which cannot locate and direct maintenance teams in areas where there are no house numbers and roads. The SJC, in partnership with Ndifuna Ukwazi, has a project to map toilet locations using GPS and to develop a simple, free, way to report faults with mobile phones. By enabling residents to report faults more easily and accurately, the City’s own fault reporting system can be made more effective.

Such work constitutes international best practice in building the kind of community organisation which is indispensable for effective participation. It is also what genuine ‘active citizenship’ is all about.

For local authorities committed to participatory policy-making and monitoring, it is often a challenge to find credible community organisations with whom to engage, particularly in poor communities. The creation of well-organised and empowered community organisations is therefore a significant asset for these local authorities.

In partnership with these organisations, local authorities are well placed to develop a systemic, community-driven response to what is not only a collective social problem, but a basic human right – the delivery of accessible, reliable, safe and acceptable sanitation services.

It was disturbing therefore to note the public response of Councillor Ernest Sonnenberg, Mayco member for Utility Services, to the SJC audit (GroundUp, 1 October 2014). The tenor was to seek to discredit the SJC and its social audit work, and the response concluded with the ominous warning that the SJC will not be included by the City in its own assessment of the janitorial programme. This is directly at odds with the ethos of community engagement and partnership in service delivery, even in the face of the disagreements and tensions which are an inevitable part of engagement.

The community organising and social audit work of the SJC and its attempts to facilitate engagement between the City and residents of Khayelitsha in relation to sanitation and other basic services constitutes an excellent model for other parts of South Africa.

The City should embrace the opportunity of working in partnership with the SJC to realise the constitutional commitment to improve the quality of life of the residents of Khayelitsha.

The stakes are too high for our constitutional democracy for the City to squander this golden opportunity for meaningful engagement on a critical socio-economic right.

Professor Liebenberg is Professor of Human Rights Law at Stellenbosch University and Co-ordinator of the Socio-Economic Rights and Administrative Justice Project SERAJ.

See also:

Khayelitsha toilet audit finds “dire” results

Ernest Sonnenberg, Mayco member for Utility Services, responds to SJC

Activists to Sonnenberg: City must engage constructively on sanitation