The role that human rights should play in South African economic policy has been the subject of intense controversy and debate over the past year. This, after the Ministry of Finance announced spending cuts in its Medium-term fiscal policy statement as the COVID-19 pandemic ravaged lives and livelihoods.
The statement sets out the government’s policy framework for the next budget as well as its macro-economic plans and targets for the next three years.
The plan is to cut government spending over three fiscal years, starting in 2021, by 300 billion rand (about $21 billion). This will seriously affect the budgets for education, health, agrarian reform and other social services.
The government said the cuts were necessary to avoid a “debt spiral” – borrowing money to meet commitments. Because South Africa has a sub-investment grade rating, he has to pay higher interest on the new debts. In addition, GDP had fallen by 7% in 2020 due to the impact of COVID-19 on an already struggling economy.
Economists and civil society critical the plan. They argued that this undermined access to socio-economic rights for many disadvantaged groups. Instead, the government should explore other options for mobilizing resources.
Socio-economic rights are enshrined in the charter of rights. They include access to land and housing, health care, food and water, social security and education.
The doctrine of non-regression
This controversy raises the question of what role human rights should play in economic policy, especially in times of economic hardship. What should guide the weighting of costs and benefits of different spending priorities?
Read more: Why human rights should guide responses to the global pandemic
Global human rights bodies have developed the doctrine as a tool to assess policies that lead to a deterioration in the enjoyment of these rights. The doctrine requires states to justify such policies according to certain criteria.
Austerity measures and human rights
In my article, I explore the main characteristics of the doctrine of non-regression. I examine whether this can be applied to fiscal consolidation and whether it has been applied in South African court decisions.
The main conclusion is that the doctrine is part of the country’s jurisprudence on socio-economic rights. It should therefore guide economic policy and budgetary decisions, to ensure that they reflect human rights principles and priorities.
This would help the government defend its decisions before international human rights bodies or in national courts.
In 2018 the United Nations Committee on Economic, Social and Cultural Rights criticized the economic policy decisions of the South African government. This committee monitors States’ compliance with their obligations under the International Covenant on Economic, Social and Cultural Rights. The committee noted the country’s “austerity measures” had cut budgets for health, education and other public services. He expressed concern that the cuts would deepen inequality and reverse the gains made.
The UN body cited its doctrine of non-regression and recommended that the executive and legislature take human rights into account when drawing up the budget.
He refined the key elements of this doctrine in response to the austerity measures adopted during the global financial crisis of 2008-2009. Since then, States have had to demonstrate that some Criteria have been encountered.
They must show that:
retrograde measures are adopted only as a last resort
alternatives have been thoroughly considered
those who are disadvantaged and vulnerable will not be negatively affected
social protection programs are in place so that people’s essential basic needs are not compromised
there was genuine public participation in relevant decisions.
The courts and the doctrine of non-regression
This doctrine of retrograde measures is receiving increased attention in South African courts. For example, the North Gauteng High Court relied on it in its judgement on the suspension of National School Nutrition Program during the lockdown last year. The court said the suspension violated the children’s right to basic education and basic nutrition. He ordered the government to come up with a plan to ensure that every learner receives a daily school meal whether they attend school or study from home.
The doctrine was also cited in another judgment in which the court found that the withdrawal of government subsidies to early childhood education providers was unconstitutional.
Read more: Successes of the African Human Rights Court Undermined by State Resistance
The Constitutional Court has previously ruled that the courts must take into account the availability of resources in judging whether the government has taken reasonable steps to meet its socio-economic rights obligations. He also said that the government must show that its resource allocation decisions take human rights into account.
For example, the court said that the organs of the State cannot invoke the excuse that they did not plan and budget appropriately for the fulfillment of their constitutional duties.
Ideally, the courts should not intervene directly in matters of economic policy and spending priorities. The executive and the legislature bear the primary responsibility for ensuring that budget decisions take human rights into account. But when they fail to do so, the courts have a constitutional responsibility to protect those constitutional rights.
How should the executive and the legislature ensure that human rights are taken into account in economic policy decisions?
One way is to conduct human rights impact assessments before embarking on economic reforms, because recommended by the UN. Another is to create a political framework for extensive public participation in economic and fiscal policy decisions.
Public participation is essential as it can highlight the impact of policies on vulnerable and disadvantaged groups. It can also suggest ways to avoid or mitigate these impacts.
the Open Budget Survey 2019 South Africa ranked South Africa first in terms of transparency of its budget process, but lowest in terms of public participation. Civil society organizations complained that the budget process is inaccessible to poor communities. They say it doesn’t offer meaningful opportunities for engagement.
Without resources, human rights are just words on paper. South Africa needs an appropriate policy and legislative framework to ensure that human rights principles guide economic decision-making, especially in difficult times.