This contribution is published as part of the UNRISD resource platform for practitioners and policy makers Linking Social Protection and Human Rights. This part of the platform is a collection of expert contributions and commentary from advocates, practitioners, policy makers and academics sharing practical guidance and thought-provoking commentary on their experiences with a human rights approach to social protection. Please share your thoughts on this article in the comments space below.
Letlhokwa George Mpedi
is Professor in the Department of Mercantile Law, Vice Dean and Director at the Centre for International and Comparative Labour and Social Security Law at the Faculty of Law of the University of Johannesburg.
Keeping vigil over the human rights implications of states’ social protection activities
One of the fundamental roles that civil society organizations play is to ensure that states, particularly in emerging economies where social insecurity is rife, respect
the fundamental right to social protection (Samad 2009) and provide for vulnerable and marginalized members of society. This requires civil society organizations to fulfil two primary functions. Firstly, they must actively monitor
the social protection provisioning of the relevant state actors. This is necessary to ensure that social protection policies, programmes and implementation thereof resonate well with the principles, rights and obligations
outlined in, for example, binding international conventions, national legislation and jurisprudence. Secondly, civil society organizations have the important function of holding state actors accountable
through activities such as exerting pressure on political decision makers and court action if their efforts do not comply with expected standards.
Easier said than done
This is easier said than done. The point is that the degree and the effectiveness to which civil society organizations can monitor and hold state actors accountable depends largely on the political and legislative milieu within which they operate. Non-democratic states tend to have a hostile attitude toward civil society organizations. They have a tendency to view civil society and its activities as antagonistic and predisposed to undermining their efforts in providing social protection and the way they wish to honour their social contract with their citizenry. Therefore, they enthusiastically use the law as a tool to quell and erode civil society organizations and their programmes. This creates an atmosphere that is not favourable for civil society organizations to pressurize the state and its organs to fulfil their social protection obligations. Civil society organizations are, under these circumstances, compelled to struggle for their legitimacy and recognition. This is done by soliciting society’s support.
Another option is to launch civil suits to protect and enforce fundamental rights. However, it must be said that the latter possibility is invariably a tough sell for civil society organizations active in countries with a rule of law deficit and/or systemic violations of human rights such as freedom of expression. Civil litigation involves high costs that civil society organizations might not be able to afford. Another point to be observed is that it is doubtful if courts will be willing to rule against the state and its organs. If they are bold enough to do so, the prospects of state compliance with the court orders remain dim. Respect for the rule of law provides an enabling environment within which civil society organizations can monitor state actors and also ensure that they do not operate with impunity. The challenge is how to empower civil society organizations to secure and retain the rule of law in countries where it is lacking.
Democratic states more civil society friendly
Democratic states, on the other hand, are inclined to exhibit a great deal of appreciation for civil society organizations in social protection provision. The point to be observed is that, as a rule, they are receptive to criticism and are willing to remedy any shortcomings in their social protection frameworks when raised by affected or concerned parties. As a matter of fact, they deliberately enact social protection laws, develop policies and construct administrative frameworks that are civil society friendly. For instance, their social protection legislative, policy and administrative frameworks often allow or provide for so-called ‘tripartite plus’ representation. In line with this approach, the government, workers, employers and civil society are involved with or represented on the boards of social protection schemes.
Notwithstanding the foregoing observations, civil society organizations have a duty to ensure that they are well organized and able to undertake the task of monitoring and holding state actors accountable. This requires civil society organizations to devise strategies to overcome the challenges that they often have to contend with which include mistrust by state actors, the lack of the requisite funding and hostile working environments—particularly in undemocratic states (Samad 2009). Therefore, they need to:
- ensure that there is a proper understanding of the notion, nature and role of civil society organizations by governments;
- organize awareness and advocacy campaigns dealing with substantive issues as well as ensuring that their nature and role are well understood, particularly by governments;
- coordinate activities between different civil society organizations to avoid unnecessary fragmentation and lack of coordination which invariably result in inefficient use of resources; and
- play an active role in democratization drives.
"An organized civil society is an imperative condition for democracy"
The meaningfulness of the role played by civil society organizations in ensuring that state actors are monitored and held accountable in social protection endeavours cannot be emphasized enough. At the end of the day, this is important for ensuring that social protection is progressively extended to the excluded and marginalized members of society. Any state serious about extending social protection to vulnerable members of its populace should embrace and support civil society organizations as a partner. This is sensible because civil society organizations largely operate at grass-roots level and are well positioned to identify areas of need, and to monitor as well as evaluate services rendered and programmes operating at that level. As rightly pointed out by the United Nations Economic and Social Commission for Western Asia
, states need to appreciate the fact that: “An organised civil society is an imperative condition for and an expression of democracy. It is an intermediary between state and society and a key element in good governance. It is not an alternative to the state but it complements its activities”.
Samad, Z.A. 2009. “The role of civil society in social protection.” Paper presented at the Arab Forum on Social Policy, Beirut, Lebanon, 28-29 October.
ABOUT THE AUTHOR
Letlhokwa George Mpedi is Professor in the Department of Mercantile Law, Vice Dean and Director at the Centre for International and Comparative Labour and Social Security Law at the Faculty of Law of the University of Johannesburg. He lectures on labour law and social security to LLB, post-graduate and certificate students and has delivered papers at numerous national and international conferences. Professor Mpedi publishes on social security and labour law.