“Rights-based approaches” are increasingly seen as a core component of development by donors, NGOs and governments alike (see, for example, Haussermann 1998, Maxwell 1999).
With clearly specified, legally-enshrined and universal rights, it is argued, citizens can voice their demands on the basis of clear, transparent legal provision, sometimes with constitutional hacking. With the law providing the basis for negotiation, parties are accountable and decisions are clear. More generally, particularly with a constitutionally enshrined framework, there is a basic political signal that rights matter, and that people should organise and claim rights through accountable political and legal processes. Such a vision is therefore very much in line with the liberal, democratic form of governance being promoted by development agencies around the world. For livelihoods potentially the broad range of human rights, political, economic and social, matter. But the key question, and one the Sustainable Livelihoods in Southern Africa programme has focused on, is how can these be made real for poor people in rural areas?
In southern Africa and perhaps globally, South Africa has led the way with its progressive post 1994 constitution. A range of legislative provisions has been passed which are seen as models of a rights-based approach. A rights perspective in the southern African context has potentially very important implications for rural livelihoods. Improved access to land, water and other resources can improve incomes and restore livelihood security. Legitimising and institutionalising rights to resources and justice can redress past inequalities and power imbalances, which systematically denied access to assets necessary for securing and maintaining a sustainable livelihood.
This works well in theory, but the big question is how can new-found rights be translated into practice and does the envisaged level of rights claiming by poor people exist? This in turn raises a host of questions: How organised are poor people? What access to information and organisational, negotiation, legal and other skills do they have? How do they construct their citizenship in the contemporary setting, as rights holders, or more passively, as consumers or beneficiaries of state or donor assistance? How do politics, power and interests affect the ability of rights claiming in practice in particular settings? How do complex institutional arrangements and overlapping legal systems affect the ability of people to claim rights? Which gain precedence over others and who wins out in the end? Is the institutional context for rights claiming effective? To what degree is it really a level playing field set by principles of equality in the constitution? How do local contexts – institutions and politics – affect the ability of people to negotiate access to resources to which they are entitled?
The SLSA research in Mozambique, South Africa and Zimbabwe sheds light on the practice of rights claiming on the ground, in the context of “legal pluralism” and complex, politicised institutional settings. Rather than an emphasis on rights in abstract legal or constitutional terms, the research has explored instead the practices of rights claiming, and the complex politics of actors and institutions which affect this. In the southern African context rights are formulated and claimed in a very unlevel playing field and are highly contested. In practice, rights are realised through complex negotiations about access to resources at a local level. Broader rights frameworks enshrined in the constitution, in legislation and in policy can, despite their progressive nature, be irrelevant unless the local institutional context IS conducive to encouraging effective rights claiming by poor people. A rights-based approach for sustainable livelihoods must therefore concentrate on institutional mechanisms for gaining access to resources, rather than only on establishing universalised legalistic rights frameworks.
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This article comes from the IDS Bulletin 34.3 (2003) Rights Talk and Rights Practice: Challenges for Southern Africa
