Rights talk and rights practice: challenges for Southern Africa | Land Portal

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Date of publication: 
janvier 2003
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This research in Mozambique, South Africa and Zimbabwe looks at the practice of rights claiming on the ground, in the context of 'legal pluralism' and complex, politicised institutional settings. 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.This paper concludes that: rights-based approaches may open up opportunities for improved access to resources (as in the water sector reforms in South Africa and Zimbabwe) but only if the relevant support and capacity is there. In tandem with legislative reform, greater investment in institutional development is required. Changing the law is clearly not enough, although an important first stepa conventional Western-liberal, individualist approach to rights is clearly inappropriate in many contexts in southern Africa. A recognition of group or collective rights for instance around land is an important complement. A broader definition of rights, based on people's own conceptions, is therefore key, and this must incorporate cultural, religious and ethnic dimensions, as well as material needs. Appropriate legal mechanisms are required to uphold such collectively-held rights, and these may not be based on conventional private-property rights concepts. However (again in the example of land) it is not always possible or appropriate to legislate land rights and design administrative systems that account for the complexity, variability and fluidity of land-holding systems and emphasis needs to be placed on institutions and processes rather than formal legalistic rights frameworksrecognising that the institutional context for rights claiming is complex and contested is an important, often missed, step. Ignoring power and politics in institutional design results in sure failure of rights claiming and capture by those with power and resources. Thus new "participatory" institutions may be far from that in reality, as, for example, in the catchment councils of Zimbabwe or many "community-based" initiatives across the regionthe notion of rights to livelihood survival for the poor needs to be highlighted in the context of competing claims by different,richer, more powerful actors. But upholding these rights against claims by others (powerful private sector players, state officials demanding patronage, or "traditional authorities" seeking control, for example) requires a strong and effective mediator and arbiter on behalf of the poor and marginalised. Where the state is weak, not trusted, predatory and exploitative, or simply absent, a rights free-for-all will result potentially in the undermining of livelihoods of the poor. And, even if strong and effective, state intervention may undermine the flexibility and responsiveness of existing plural systemsreinforcing state capacity, competence and legitimacy, then, is a key component of encouraging a rights-based approach. But support for effective, representative organisation and mobilisation is the other side of the equation in order to increase voice, demand and accountability. This raises the issue of language, communication and information,and, more generally, access of poor people in rural areas to the type of resources required to claim rights effectivelyCurrently in rural southern Africa, the prospect of a rights-based transformation of development practice seem remote in the extreme. The retreat of the state through neo-liberal economic reform and deconcentration, or its effective collapse, have fundamentally undermined the state's developmental capacity and responsiveness. The same donors who are now advocating a rights-based approach have been party to these changes, and will need to reconsider their strategy if the rhetorical claims of supporting rights and eliminating poverty are to have any impact on poor people's livelihoods. [adapted from author]

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