SDI Bulletin: Beyond a legal framework for “meaningful engagement” in South Africa

by James Tayler


pictured above: FEDUP’s Alfred Gabuza (far right) speaks at a meeting of the Informal Settlement Network in Roodeplaat, South Africa, on 20 February 2010.

By Benjamin Bradlow, SDI secretariat

Adapted from remarks given at a roundtable discussion on “meaningful engagement” hosted by the University of Western Cape Community Law Centre and the Socio-Economic Rights Institute, on 4 March 2010.

“Meaningful engagement” is a term that has gained currency in South Africa over the last few years primarily through a series of Constitutional Court (the highest court in the country) cases regarding evictions of poor, informal dwellers. These decisions have compelled state actors to “meaningfully engage” in various ways with those they want to evict before pursuing the actual forced removal.

I want to make three related arguments about the limits of a legal framework for engagements between the state and poor citizens. The first is that “meaningful engagement” is a political process, and it is often a messy one at that. What is needed, then, is for governments to prepare to respond appropriately to the capacities of organized communities to engage. My second argument is that because it is such a political process, the inherently technocratic orientation of the law means that it has only a limited role to play in structuring these kind of engagements. Finally, I want to add to a discussion about how poor communities are preparing themselves for sustained, “meaningful engagements” with government.

Real “meaningful engagement” must be sustained engagement, not one-off encounters of the sort mandated by courts or those that constantly require the intervention of lawyers. S’bu Zikode of slum dwellers movement Abahlali baseMjondolo was part of the workshop on “meaningful engagement” hosted by the Wits Centre for Applied Legal Studies (CALS) on 27 July 2009. There, he argued that “meaningful engagement” is part of a greater struggle by ordinary poor people to reclaim their humanity in their relations with the state. According to the report from this workshop put out by CALS, Mr. Zikode suggested that sustained dialogue, negotiation and learning with government officials were key to developing the kinds of relationships necessary for people-centered development.

“Meaningful engagement” is not something that should happen only when the law commits the state to pursue to specific interventions along these lines in order to implement its own policies. From the side of civil society, a “rights-based” approach is only a small part of a much larger effort to empower communities of the urban poor to organize around their own resources and capacities, accumulate local knowledge, set priorities, and engage other stakeholders — often the state — in order to broker deals. These are the basic propositions of Slum Dwellers International affiliate federations in over thirty different countries. In South Africa, our allies are the Federation of the Urban Poor, known by its acronym as FEDUP, and the Informal Settlement Network, a nation-wide network of settlement-level and national-level slum dweller organizations, including Abahlali and FEDUP.

In large part, we tend to only talk about “meaningful engagement” between poor communities and state institutions when conflicts between citizens and the state are reaching their breaking point. Evictions are sometimes a useful starting point to begin such engagements, but for such an engagement to be “meaningful” it cannot end with the resolution of the eviction case in and of itself. Though there have been important victories against evictions, state institutions and private actors continue to seek many more evictions than the number being won in the courts. More widely speaking, more people live without access to water, sanitation, or energy. This country is bound by a constitution widely lauded for its guarantee of rights to basic services. But too many people persist without these services. A legal framework alone is inadequate to address structural inequality and poverty.

Abahlali was responsible for a Constitutional Court victory against the proposed KwaZulu-Natal slums act, which, had it not been struck down, would have paved an even easier path for the state to pursue evictions of informal dwellers than it currently has. This was an important, but, in a sense, limited win. Simply put, evictions are still occurring.

The law can sometimes tell the state not to evict. It can even force the state to consult with the poor. But it just can’t construct a process that is, by nature, an organic, political one. In some eviction court cases, like Olivia Road v. City of Johannesburg, the city is ordered to “meaningfully engage.” In the Olivia Road case, part of the application of the term meant that the city was to conduct a survey of residents of the Olivia Road building, a responsibility it ultimately tendered to an outside professional consultancy. This was anything but “meaningful engagement” with the unique and pre-existing knowledge resources of poor communities.

Organized communities of the urban poor have implements of their own that effect positive outcomes in ways that build “meaningful,” sustainable engagement with the state and other actors who bring eviction orders. When communities organize around their own resources and capacities, chief among these is information. It is on this point that the intention of court-ordered engagement between the state and ordinary poor citizens can get lost.

In other cases of action in the face of eviction threats, communities have organized around their own knowledge capacity to first face down the threat, and then to create the space for dialogue with government that ultimately leads to development in situ or a truly negotiated relocation. The case of the Joe Slovo community here in Cape Town is a great example. Though the legal battle last year eventually staved off imminent eviction, the possibility for sustained, “meaningful” engagement with the state has only come about through these kinds of organizing measures. Just last month, the community finished up a process of issuing itself informal household ID cards. This was the latest step in an enumeration process, in which the community surveyed every household on a wide range of social indicators. This process of information gathering has assisted significantly in organizing the community to be strong advocates for its own priorities as it negotiates with the Cape Town metropolitan municipal government on how to upgrade the settlement in situ. Even despite many of the obstacles that remain, victories in court appear almost pyrrhic when compared to the developmental achievements of an organized community armed with its own information and priorities prepared to engage with the state. This is an experience we have seen throughout our SDI network.

“Meaningful engagement,” if we take it to be a term that can help describe a greater sense of civic purpose in the ways in which citizens interact with the state, points to a bottom-up approach that is not limited to the Constitution or any other legal framework. Secondly, while a court can enforce specific obligations and rights, a democracy is the sum of much more than just these compulsions. Finally, the state can meaningfully engage by pursuing policies and interactions that facilitate the kinds of community organization that reinforce and grow the capacities of ordinary poor citizens. Organized communities of the urban poor can use their tools of association to work with the state towards their own development. It is this kind of bottom-up governance that most effectively empowers citizens to engage with the state to help fulfill the social rights agenda that South Africa’s legal framework demands. The law can, on occasion, protect the most vulnerable to defend their rights. But the law alone cannot ensure the growth of the necessary capacities to allow the most vulnerable to take hold of their destinies as proper democratic citizens. “Meaningful engagement” that comes about through the hard work of the organized poor themselves — work and organization facilitated by a truly developmental state — will begin to deliver the kinds of social outcomes and restructuring of social relations that documents like the Constitution can only imply.