Rationale for Hybridization - The Rights-Based Approach To Development

NEW WINE IN OLD WINE-SKIN? THE RIGHTS-BASED APPROACH TO DEVELOPMENT

3.2 The Rights-Based Approach To Development

3.2.4 Rationale for Hybridization

Looking at development literature prior to the 1990s, it is evident that human rights and development were regarded as separate and distinct areas. Although it is not very clear what occasioned the

For instance at a DFID meeting in 2003, out of a staff of 25 development practitioners only two had heard of the Right to Development and RBA (Nyamu-Musembi & Cornwall, 2004:9).

integration of human rights in development planning and implementation the HDR 2000 summarizes the underlying justification for linking human rights and development:

...the ideas of human development and those of human rights are linked in a compatible and complementary way. If human development focuses on the enhancement of the capabilities and freedoms that the members of a community enjoy, human rights represent the claims that individuals have on the conduct of individual and collective agents and on the design of social arrangements to facilitate or secure these capabilities and freedoms(2).

Throughout the 1990s there has been a growing realization that human rights are an indispensable ingredient of the development process. Impoverishment, indigence and deprivation lead to denial of people's freedom and dignity, just as human rights abuse often lead to deprivation, impoverishment and indigence. Again, the HDR 2000 makes the synergy created by linking the two clearly by observing that human rights, human rights and development are complementary arms. While human rights seek to secure the protection of human dignity and basic freedoms, development seeks to advance people's freedom by improving their capabilities and well-being. In this sense, "[w]hen human development and human rights advance together, they reinforce one another—expanding people's capabilities and protecting their rights and fundamental freedoms" (ibid). When viewed from this complementary perspective, RBA suggests that, "human development is essential for realizing human rights, and human rights are essential for full human development" (ibid).

3.2.5 But What is a Rights-Based Approach?

From the available body of literature on RBA, there does not seem to be a single definition of RBA. In fact this approach seems to mean different things to different theorists and practitioners. Some authors see RBA as a component feature of the Right to Development to the point that it is listed as one of the

"four basic operational elements of the DRD" which include Poverty Reduction Strategies (PRS), Development Compacts (DC) and Monitoring Strategies (Sengupta, 2003:235). For donor countries and agencies, RBA is taken to mean that aid recipient countries should show serious commitment to human rights, while for the recipient countries or communities, RBA entails that they have a right to be helped to meet the challenges they face (Thiss, 1996; Art, 1996).

Not only are there such differences in the way RBA is perceived, but the approach is loosely used to encompass a lot of other things. For example, Nyamu-Musembi & Cornwell compiled a list of what ten different international development agencies say RBA is, and all of them came up with a different notions of what RBA is (2004:13). Johnson also observes that when it comes to what constitute RBA,

there is a plethora of concepts that are very seldom explained, including human rights approach to development, rights-based approach to development, programming in human rights perspectives.. .and programming through a human rights lens (2005: 52).

This ambiguity74 of the term can be a challenge when it comes to isolating the main components of a rights-based approach.

3.2.5.1 Finding the Common Thread

However, the fact that there is no agreement on what constitutes RBA does not mean that all is grey;

there are common elements that are widely acknowledged to be the core of RBA. Looking across the spectrum of definitions of RBA, what seems to be common to all is the use of human rights norms as the standard on which development programmes, projects and policies should be conceptualized and implemented.

Mary Robinson (2001), former UN High Commissioner for Human Rights captures the general focus when she says that, "[t]he rights-based approach integrates the norms, standards and principles of the international human rights system into the plans, policies and processes of development'Ywww.worldbank.org). Emphasis here should be on integrating human rights norms in development planning, process and programmes. As to the norms that constitute RBA, they differ from organization to organization, though five human rights principles can be identified to cut across the board. They include accountability, empowerment, equality and non-discrimination, participation and progressive realization.

3.2.5.2 Accountability

Accountability is not specifically new in development discourse and practice. Earlier approaches to development such as the basic needs, livelihood approach, the redistribution and growth strategies all mentioned accountability as an important ingredient of development programmes. Particularly in developing countries, accountability of states and other actors including NGOs (local and international) has been occupying centre stage.

For Care International, the "RBA means that we support poor and marginalized people's effort to take control of their own lives and fulfill their rights, responsibilities and aspirations...."(Jones, 2005:81). In fact some development

practitioners use the rights based approach interchangeably with the human rights approach. Eyben(2003) argues that the two are actually not the same in the sense that the human rights approach is more focused on international rigid legal pronouncements while the rights based approach is more flexible, encompassing general and broad human rights norms and is more practice oriented (see Nyamu-Musembi & Cornwell, 2004:13 ff).

Robinson(2001) refers to accountability as the "defining attribute of human rights in development"

fwww.worldbank.org). Similarly, the OHCHR notes that "the most important source of added value in the human rights approach is the emphasis it places on the accountability of policy-makers and other actors whose actions have an impact on the rights of people" (# 23). The basic reasoning behind the principle of accountability rests on the notion of government as a trustee which citizens have entrusted with public resources. Essentially, the state administers public resources gathered through various taxes and other means. In this case, it is only right that the "public" knows how this money is spent (Diokno,

1999:28). But that is one level at which accountability is required.

At a more fundamental level accountability entails transparent public conduct or procedures. In this sense, accountability is a pillar of democracy and good governance. Mark Brown for instance asserts that "accountability in the use of funds and accountability to people's needs are also integral dimension to pro-poor governance" (in Hunt, Novak & Osmani, 2002:12).

Accountability as a human right principle or norm emphasizes not only accountability in the use of public resources, but also the duty to account for public conduct including decision making processes which may not necessarily involve use of resources. What the norm of accountability presupposes is a set of adequate institutions and mechanisms which make it possible for the public to hold the state actors accountable. Otherwise the duty to account becomes no less than "window-dressing" (OHCHR, 2002:#8). Institutions essential for effective accountability include active civil society which can often be the vehicle for giving meaning to the process of accountability itself.

In this sense, RBA essentially requires active participation of civil society in its broadest sense (Chitonge, 2006). Civil society's role in building a development process that ensures that people's human rights are not sacrificed for narrow social and political interest is indispensable (Offenheiser &

Holcombe, 2003). Here, it must also be stressed that accountability in RBA should be distinguished from its rhetorical forms embellished in the slippery good governance propaganda, which often implies state accountability to donors, creditors or the international financial institutions in a top-down style.

Essentially, genuine accountability involves a reconfiguration of power relations (Gready & Ensor, 2004) with the view to creating shared power through decision making, information sharing and active participation. Now, this is probably one of the reasons why RBA is often not adopted by the corridors of power because it is difficult to live up to the demands of sharing power and decision making. Most

importantly, this is the reason why most governments, although having committed themselves to human right norms, often are unwilling to come to the 'braii'.

3.2.5.3 Participation

Like accountability, participation has been part of the 'realpolitik' of development discourse since 1970s. In conventional politics, participation has been pushed unto the people as a way of appearing politically correct. From the early 1970s with the advent of Participatory Rural Appraisal (PRAs) and the Participatory Poverty Assessment (Chambers, 1983), participation has been used as a currency for performing many functions. For instance, the Basic Needs Approach75 during the late 1970s, the drawing up of PRSPs in the developing world during the 1990s, and many development policy documents have ridden on the wings of participation. A sister word used to dress up participation in some discourse is community ownership—which often mean different things to different people. For example, World Bank in its 'new' approach to PRSP, emphasizes participation and local ownership of PRSP (Greg & Porter, 2003), while the programmes themselves are literally drawn up by Washington DC development 'experts' (Jubilee South, 2000).

Participation as a human right principle goes beyond mere formalism that is often exhibited in the various official processes where people are asked to participate in discussing something that is already decided. As a human right principle, participation requires "active and informed participation" of the poor especially "in the formulation, implementation and monitoring" of public decisions that affect their lives(OHCHR, 2002:#10). So the right to participate generates a duty on policymakers to ensure that people are not just consulted, but that people's contributions form the pillars on which policy and programme decisions are made.

Of course, this is a challenge for any government that take this norm seriously because it will certainly involve going back and forth to the people, the community, at every level of decision making. Further, for people to be able to participate effectively, information, discussion forum, knowledge of the policy or programme being discussed, and other enablers should be made accessible. In other words, the realization of the right to participate is contingent on and influenced by the realization of other rights76

such as the right to information, the right to education, freedom of speech, assembly, and conscience.

Ghai, et al (1977) has described participation as one of the "basic elements" of the basic needs approach(9). People were asked to participate in choosing what constitutes basic needs though the process of identifying the needs was not integrated into the strategy .

It is in this sense that human rights are interdependent, indivisible and complementary (See Vienna Declaration and Programme of Action 1993)

Otherwise participation without these conditions secured, often turns out to be a talk-show where bureaucrats seize the opportunity to fulfil their job descriptions. Thus implementing the principle of participation, in RBA requires that people, especially the poor, be treated not as "objects of charity" or passive participants or recipients of development programmes, but as "active participants" and beneficiaries of the process of development (RtD, #1; Offenheiser &Holcombe, 2003:4).

3.3.5.4 Progressive Realisation

A rights based approach to development does not create an obligation that requires an immediate realization of all human rights. Realistically, it is impossible to realize certain rights within a short period. However, the principle of progressive realization does not mean that the rights in question should be left to the time when resources are 'abundant.' Progressive realization requires the state to take immediate measures towards the realization of the concerned rights. General Comment 3 which outlines and explains "the nature of the duty of states party" to the International Covenant on Economic, Social and Cultural Rights (ICESCR) clearly explains the meaning of this principle:

The concept of progressive realization constitutes a recognition of the fact that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time. Nevertheless, the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed the raison d'etre, of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal.

Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources (#9).

Contrary to the argument common among radical human rights activists that progressive realization can be an escape tunnel for the state to delay serious commitment to economic, social and cultural rights, the state has a clearly defined duty not to delay formulation, adoption and implementation of relevant measures and programmes. In this instance, lack of a programme, say on realizing the right to water, cannot be justified on the principle of progressive realization.

Regarding measures that a state party to the Covenant should take, General Comment 3 stipulates that the measures taken to realize the rights under this Covenant "should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant" (#2). Thus,

in implementing RBA, the question that should be asked about any right is whether there is a programme that aims at realizing a particular right such as the right to water and whether that programme is concrete, targeted and reasonable.

As noted above, the obligation to realize social and economic rights is often side-tracked by the Cranstonian type of argument that there are no resources available to realize economic, social and cultural rights. In terms of the progressive realization principle inadequacy of resources should not be an excuse for failing to comply with the obligation of progressive realization, at least the obligation to take measures. Limburg Principles clearly refutes the ploy by many states parties to the Covenant especially in developing countries to hide behind the curtain of scarce resources when it points out that

"the obligations of progressive realization of rights exists independently of the increase in resources; it requires effective use of resources available"(1993: #23). Therefore, progressive realization does not mean that you do it when you have got enough resources, but rather that you start with what you have got. Taking steps can be done with $100 just as it can be done with $750 trillion.

What should be stressed in RBA is that the steps taken should be reasonable, concrete, and pertinent to a given right considering the resources available. In this case, absence of measures, steps or programme, for instance, on the right to water constitutes a prima facie case of non-compliance with the norm of progressive realization. In addition, progressive realization demands effective monitoring of selected indicators and national benchmarks (Hunt, Novak & Osmani, 2002:17), such that the principle does not just create an obligation of a. process or measure, but also an obligation of outcome77

(Osmani, 2003). Monitoring of progress made on agreed indicators and benchmarks creates a background upon which the principle of accountability can be applied.

3.2.5.5 Equality and Non-Discrimination

The principle of equality is very central to international human rights law (Hunt, Novak & Osmani, 2002). Equality as a human right principle is presumed by all major international human rights documents including the Universal Declaration of Human Rights (UDHR) and the Right to Development such that little explanation is offered as to what the equality principle means in the real

An independent expert on the Right to Development argues that the right to development does not generate the obligation to a particular outcome; it only creates an obligation of a process of development, that is, an obligation to adopt and set in motion a particular development process (See Sengupta, Second Report 2003). But as a number of writers have highlighted, a right to a process is almost meaningless unless it is coupled with the right to an outcome of some sort (see Osmani 2003- Salomon, 2003).

world were people are actually very different and unequal in many respects (Sen, 1992). Arising from the principle of equality is the norm of non-discrimination.

Justification for equality and non-discrimination are based on the natural law-natural rights notion of human rights mentioned above. The argument is that though people are different in size, height, wealth, intellectual capacities, social status, they all have some inherent dignity and worth by virtue of being humans. Consequently, the equality referred to is not that of equality in external or physical qualities; it is based on a moral value attributed to every human person regardless of their external disparities.

Now, as a human right principle, equality refers to equality of opportunity in the distribution of resources as well as means of livelihood (Rawls, 1971). However, the principle adopts a bias towards the poor and the vulnerable without prejudicing other groups. OHCHR points out that the "international human rights normative framework has a particular preoccupation with individuals and groups who are vulnerable, marginal, disadvantaged or socially excluded" (2002: #9). The justification for this bias is that often it is the poor whose rights are not likely to be realised; often it is the vulnerable groups that are discriminated against(OHCHR, 2002; Hunt, Novak & Osmani, 2002). Diaz ( 2002) makes the same point arguing that RBA focuses on the marginalized, poor and powerless because these are the groups or individuals whose rights are most at risk. Theoretical justification for taking a bias towards the poor can be provided by the "deprivation focus'" principle discussed in Chapter One. Similarly, the Rawlsian

"difference principle" also supports the approach of focusing on the poor while not disadvantaging the non-poor (Rawls, 1971: 68).

Thus taking RBA entails that attention be given to the poor and vulnerable groups such that policies and programmes focus on those sections of the population whose rights are more likely to remain unrealised. Strategies therefore should focus on programmes that are more likely to benefit the poor such as primary health care and education, low cost housing, and water services to low income areas. In cases where a particular programme results in the poor being disadvantaged or discriminated or ignored (which is often the case when it comes to low income areas, as it shall become clear in the Zambian case), then that programme fails to incorporate the norm of equality and non-discrimination. In general, the right to equality "lends moral legitimacy and the principle of social justice to development objectives, and helps shift the focus of analysis to the most deprived and excluded, especially to deprivations caused by discrimination" (Robinson, 2001). In view of this, RBA focuses on preventing

Dalam dokumen Exploring the challenges of implementing the rights-based approach to development : the case of the right to water in peri-urban Zambia. (Halaman 110-119)