SEMINAR DAN LOKAKARYA NASIONAL

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1 SEMINAR DAN LOKAKARYA NASIONAL Menuju Perlindungan dan Pemantauan yang Efektif Hak-hak Ekonomi, Sosial dan Budaya di Indonesia Yogyakarta, April 2007 National standards and indicators in fulfilling economic, social and cultural rights: Sources, strategies and challenges Oleh: Dr. Lilian Chenwi (University of the Western Cape (UWC), South Africa)

2 National standards and indicators in fulfilling economic, social and cultural rights: Sources, strategies and challenges Monitoring the fulfilment socio-economic rights in South Africa Economic, Social and Cultural Rights Workshop, Indonesia, April 2007 I. Introduction Generally, the ability to undertake regular monitoring of the major international human rights instruments is central to the achievement of a meaningful international human rights system. If the progress made in fulfilling socio-economic rights is not closely monitored, there rights might just end up as mere paper rights. Various methodological preconditions for the systematic monitoring of socio-economic rights have been identified. 1 In South Africa, the standards and indicators in fulfilling socioeconomic rights are not limited to statistical data, but also include qualitative standards emanating from provisions in the Constitution 2 and laws, policies and court judgments relating to socio-economic rights. Looking at the South African experience, it is unquestionable that the different methodological preconditions have been applied in varying degrees in the process of monitoring the fulfilment of socioeconomic rights. II. Standards and indicators - Measures aimed at the realisation of socioeconomic rights A. The reasonableness review standard The states duty to realise socio-economic rights, as set out in the Constitution, requires it to adopt reasonable legislative and other measures that make it possible for those in need to access socio-economic goods and services and to provide material goods and services when the need arises. Examples of socio-economic rights that explicitly require the state to enact legislation to give effect to them are: Section 24(5) in relation to access to land, section 26(2) in relation to the right to have access to adequate housing, and section 27(2) in relation to the rights to have access to health care services, food, water and social security all these provisions require the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of these rights. Accordingly, amongst others, a 1 See, for example, Audrey Chapman Indicators and standards for monitoring socio-economic rights available on <http://hdr.undp.org/docs/events/global_forum/2000/chapman.pdf>. Chapman notes the following five methodological preconditions: Conceptualisation of the specific components of each enumerated right and the concomitant obligations of states parties; delineation of performance standards related to each of these components in the form of indicators and benchmarks, making possible the identification of problems and potential major violations; collection of relevant, reliable, and valid data, appropriately disaggregated by sex and a variety of other variables, in a consistent format over time, making it possible to evaluate trends; development of an information management system for these data to facilitate analysis of trends over time and comparisons of status of groups within a country; the ability to analyse these data in order to determine patterns and trends. 2 Constitution of the Republic of South Africa Act 108 of 1996.

3 wide range of legislation has been enacted, aimed at facilitating, providing and protecting access to basic resources. The legislative measures include legislation creating and empowering structures and institutions and setting in place processes for the implementation of socio-economic rights. In evaluating whether state is meeting its socio-economic rights duties, the Constitutional Court has set out indicators to measure what constitutes a reasonable measure. In the place of defining and enforcing a minimum core obligation, the Constitutional Court has adopted a reasonableness review standard. 3 This standard was developed in the Grootboom case. 4 As mentioned earlier, this standard is derived from the state s duty to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of socio-economic rights. The Constitutional Court presented its reasonableness test as a means-end effective test. It stated that in reviewing the state s duties, a court will not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been well spent. The question would be whether the measures that have been adopted are reasonable. 5 Hence, the Court gives wide latitude to the political branches of government to make the appropriate policy choices, with the Court s role being to determine whether they fall within the bounds of reasonableness. In other words, the reasonableness review standard requires that the state first acts to give effect to the right in question, and that what it does meets a standard of reasonableness. The standard is context sensitive and reasonableness is determined on a case-by-case basis. It is also not exhaustive as the standard is a changing one - it avoids closure and creates the on-going possibility of challenging socio-economic deprivations in the light of changing contexts. It also allows for consideration to be given to the requirements of the Constitution and to the socio-economic issues in their historical, social and economic context. In order for measures to be reasonable, they must meet, at least, the following basic standards: 3 The minimum core approach is aimed at protecting the most vulnerable groups of society. Generally, the approach involves identifying such subsistence levels in respect of each socio-economic right and insisting that the provision of core goods and services enjoys immediate priority. It thus represents a floor of immediately enforceable entitlements from which progressive realization should proceed. See Marius Pieterse Resuscitating Socio-Economic Rights: Constitutional Entitlements to health care Services (2006) 22 South African Journal on Human Rights at Government of the Republic of South Africa v Grootboom and Others 2001 (1) SA 46 (CC) [hereinafter Grootboom]. This case deals with the government s obligations under section 26 of the Constitution. The case concerned a number of people, including children, who had moved from an informal settlement onto private land earmarked for low cost housing owing to the appalling conditions in which they were living. They were evicted from the private land, which they were unlawfully occupying. Following the eviction, they camped on a sports field in the area and approached the courts to enforce their right of access to adequate housing. They alleged that the housing programme violated their right to have access to adequate housing guaranteed under Section 26 of the South African Constitution; and also sought to enforce their children s right to shelter under Section 28(1)(c) of the Constitution. Basically, the Court held that the obligation imposed on the state is to put in place a reasonable programme, subject to available resources, to realise the right of access to adequate housing. Regarding the children, it held that the primary obligation to provide for children s needs lies with their parents and on the state only when such children have been removed from the care of parents 5 Grootboom, para 41. 2

4 Be comprehensive, coherent and coordinated This means that a measure with respect to a particular right must address critical issues with regard to all aspects of the realisation of that right. With regard to the right to food, for instance, drawing from the UN Committee on Economic, Social and Cultural Rights General Comment 12, 6 a measure adopted to realise this right has to address issues of production, processing, distribution, marketing and consumption of safe food, as well as parallel measures in the fields of health, education, employment and social security. In addition, the measure must ensure the most sustainable management and use of natural and other resources for food at the national, regional, local and household levels. 7 An example of a case where the state s measures were not sufficiently comprehensive to be reasonable, as it had no measure in place to carter for those with no roof over their heads and in desperate need of housing is the Grootboom case. In this case, although the government had a plan for the progressive realisation of the right to have access to adequate housing and major achievements had been made, there was a major flaw in its programme in that it did not address critical issues with regard to this right such as making reasonable provision for those in desperate need of housing those with no roof over their head, no access to land, and who are living in intolerable conditions or crisis situations. The Court then held that the national programme cannot be said to be reasonable, as it does not carter for those desperately in need of access to housing it was not comprehensive. Set out responsibilities This is also linked to the measure being coordinated and coherent, such that it further clearly set out the responsibilities of the different spheres of government (national, provincial and local). Be reasonably conceived and reasonably implemented This means that it is not sufficient to the state to adopt measures only on paper. This standard echoes article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which, amongst others, imposes obligations of conduct and obligations of result. The obligation of conduct requires a state to take action reasonably calculated to realise the enjoyment of a particular right. The obligation of result requires the state to achieve a specified target as a measure of the standard of realisation of a particular right. Hence, the formulation of a programme is only the first stage in meeting the state s obligation, as an otherwise reasonable programme that is not implemented reasonably will not constitute compliance with the state s obligations. An example of a case in which the government was required to implement a measure that existed on paper and not in practice is that of Kutumela v Member of the Executive Committee for Social Services, Culture, Arts and Sports in the North West Province. 8 In this case, the plaintiffs had applied for the Social Relief of Distress Grant, but did not receive it, despite clearly qualifying. They argued that the Social assistance Act and its regulations requires provincial governments to 6 UN CESCR General Comment 12 The right to adequate food (art 11 of the covenant) UN Doc E/2000/22 para Danie Brand Introduction to socio-economic rights in the South African Constitution in Danie Brand & Christof Heyns (eds) Socio-economic rights in South Africa (2005) Pretoria University Law Press, at Case 671/2003, 23 October 2003 (B) [hereinafter Kutumela]. This case is discussed in Danie Brand (2005)14 & 48-49; and Danie Brand Socio-economic rights and courts in South Africa: Justiciability on a sliding scale in Fons Coomans (ed) Justiciability of Economic, social and cultural rights: Experiences from domestic systems (2006) Antwerp-Oxford: Intersentia, 210 &

5 provide grant to qualifying individuals upon successful application but the North West Province (the provincial government in question) had not dedicated the necessary human, institutional and financial resources to do so. The case resulted in a settlement order in which the provincial government was required to dedicate the necessary human, institutional and financial resources to provide the grant. Be balanced and flexible This means that the measure must be capable of responding to short-, medium-, and long-term needs; and not exclude a significant segment of society. A programme that excludes persons in desperate and immediate need in favour of those with medium and long term needs does not pass the test of reasonableness. The case of Minister of Health v Treatment Action Campaign 9 is a good example. This case concerned a challenge to the government s policy on the prevention of mother-to-child transmission of HIV, which was challenged as inconsistent with the right to have access to health care services. As part of efforts aimed at combating the HIV, the government devised a programme for the prevention of mother to child transmission of HIV at birth using the antiretroviral (ARV) drug, nevirapine. According to the programme, use of the drug was permissible at limited number of pilot sites, two per province, with the result that only about 10% of all births in the public sector could benefit from the policy. Doctors in the public sector outside the pilot sites were precluded from prescribing the drug for their patients. The Constitutional Court held that researching the efficacy, safety, and possible resistance to nevirapine as a step to a comprehensive programme for mother to child transmission of HIV could not justify the indefinite postponement of a national programme until conception of the best programme. The Court therefore found this programme to be unreasonable in that it was inflexible and failed to take into account the needs of a particularly vulnerable group - HIV-positive mothers and children who did not have access to the pilot sites. The pogramme restricted the provision of the drug and failed to provide for training of counsellors in the use of the drug for the purposes of reducing mother-to-child transmission of HIV. The Court ordered that the drug be administered also in other public hospitals and clinics, and counselling facilities also be extended to them. The government was also ordered to speed up the use of the drug to reduce mother-tochild transmission of HIV. This case is also a good example of an incomprehensive programme that was found to be unreasonable. Make available financial and human resources This means that, the state must ensure that enough money is allocated to realise socioeconomic rights; and provide sufficient human resources possessing the necessary skills. The Kutumela and TAC cases raise this requirement. The Court is yet to elaborate more on this. However, it is important to note that resources here also refers to things like information and development of appropriate technology needed to realise socio-economic rights. Be transparent This means that the measure or programme must be publicised - made known both during its conception and once conceived to all affected. This standard was added in the TAC case, in which the Court held that in order for the programme to be reasonable, its contents must be made known appropriately. This requirement is very (5) SA 721 (CC) [hereinafter TAC] 4

6 important because, as the TAC case illustrates, in order for litigants in socio-economic rights cases to be able to challenge the state s measure, they should be able to ascertain with certainty what the measure entails. This becomes difficult if the measure is not transparent. B. Challenges to the reasonableness review standard The reasonableness standard has not been without criticisms, stemming from, among others, the Constitutional Court s rejection of the minimum core obligations as adopted by the CESCR, and consequently, the Court s failure to recognise direct individual positive rights. It has thus been argued that the reasonableness review approach creates a number of difficulties for the enforcement of socio-economic rights by individuals and groups living in poverty. 10 This is because the applicants would have to marshal a considerable array of economic and expert evidence to convince a court that the government s social policy is unreasonable. In spite of this, the reasonableness standard provides good benchmarks against which the government s performance in fulfilling socio-economic rights can be measured. II. Monitoring socio-economic rights A. The South African Human Rights Commission s monitoring process In addition to the inclusion of socio-economic rights in the Constitution, another key feature of the Constitution is the inclusion of an institutional mechanism for monitoring their implementation The South African Human Rights Commission. 11 As stated earlier, monitoring has a number of prerequisites, including the availability of appropriate and reliable data collected in relevant formats and standards and indicators for evaluating this information. In addition, information and statistics are a powerful tool for creating a culture of accountability and for realising human rights. The Constitution mandates the South African Human Rights Commission to monitor the fulfilment of socio-economic rights. Section 184(3) states: Each year, the Human Rights Commission must require relevant organs of state to provide the Commission with information on the measures that they have taken towards the realisation of the rights in the Bill of rights concerning housing, health care, food, water, social security, education and the environment. Although this section omits land rights, the Commission read the section purposively and expansively to include monitoring the measures taken to realise land rights. The 10 S Liebenberg Needs, Rights and Transformation: Adjudicating Social Rights in South Africa (2005) 6(4) ESR Review 3-7, at 6). See also, S Liebenberg, Basic Rights Claims: How Responsive is Reasonableness Review? (2004) 5(5) ESR Review Although the Constitution places a direct obligation on the SAHRC to monitor the implementation of socio-economic rights, it also provides the same but less direct responsibility on other institutions, for example, arguably, the Commission on Gender Equality (CGE) has an implicit obligation to monitor socio-economic rights. Advancing substantive equality, which is the CGE s main objective, cannot be achieved without adopting positive measures to promote access to socio-economic rights and freedoms, especially for the disadvantaged and vulnerable groups. Therefore, the CGE would naturally be expected to monitor progress in ensuring that no one faces discrimination in terms of access to socioeconomic rights. 5

7 Commission has been diligent and consistent in requesting data from the various government departments on measures they have taken to advance socio-economic rights. It then compiles a report, which is, amongst others, an information tool on how far the government departments are fulfilling socio-economic rights. The Constitution does not require the Commission to compile reports once the information has been collected. But the Commission has taken upon itself to compile reports on the basis of the information collected. The Commission s decision to document the information collected is in line with one of the methodological preconditions that have been identified for the systematic monitoring of socio-economic rights - development of an information management system for these data to facilitate analysis of trends over time and comparisons of the status of groups within a country. Strategy / approach The Commission began by undertaking several initiatives in order to establish a foundation for its monitoring role. First, the Commission, in cooperation with other human rights institutions, developed a set of guiding principles and a comprehensive programme of action for the implementation of its constitutional mandate. This was done through the organisation of a workshop. Second, the Commission, together with Community Agency for Social Inquiry (CASE), the Commission for Gender Equality and the South African National NGO Coalition (SANGOCO), developed sources of information on the extent to which socio-economic rights are being implemented. This was done through the conduction of a survey on public perceptions relating to socio-economic rights and public hearings. To discharge its mandate, the Commission has established an Economic and Social Rights Unit, responsible for the monitoring and assessment of socio-economic rights. The strategies used for the collection and verification of information collected include questionnaires (commonly known as protocols ), research, fieldwork, and consultation with affected communities to assess the impact of the measures on the ground. In preparation of the sixth report ( ), for instance, the Commission embarked on an extensive consultative process with the disadvantaged and vulnerable communities around the country on whether the policies implemented by the government are reaching the intended beneficiaries. It is worth noting that the Commission seems to focus more on a progressive realisation approach to monitoring the fulfilment of socio-economic rights rather than a violations approach. While some have criticised the Commission for focusing more on the former approach, 12 others have argued that the latter approach is not necessary because, amongst others, the violations approach is explicitly a means towards the achievement of the justiciability of socio-economic, an issue that has already been settled in South Africa. 13 A third approach, emphasising on the role of information has been proposed as a national model Danie Brand & Sandra Liebenberg The South African Human Rights Commission: The Second Economic and Social Rights Report (2000) 2(3) ESR Review Jonathan Klaaren A second look at the South African Human Rights Commission, access to information, and the promotion of socioeconomic rights (2005) 27 Human Rights Quarterly at As above, at

8 Indicators and benchmarks The Commission relies on statistics as well as qualitative data as indicators to measure progress. With regard to qualitative assessment, the Commission assesses the information received against the reasonable standards. However, thus far, this has been to a limited extent. The Commission also uses benchmarks (targets) set by the specific government departments relating to the realisation of a specific socioeconomic right. The Millennium Development Goals (MDGs) is also used as benchmarks. 15 The MDGs are crucial to the realisation of socio-economic rights. They are international benchmarks which South Africa must meet. Government itself often speaks of its commitment to achieve these gaols, and at times, sings praises that it is ahead in meeting them. Organs of state are also requested to submit information on the indicators they have used to asses their performance in delivering social services. Furthermore, each socio-economic right has more specific indicators derived from general comments of UN bodies, courts interpretation of the specific rights, laws and policies. For example, the right to have access to sufficient food requires availability of food in sufficient quantity and quality to satisfy the dietary needs of individuals, free from adverse substances and acceptable within a given culture; accessibility of food, both economically and physically, in ways that are sustainable and that do not interfere with the enjoyment of other human rights; and sufficiency of food in that it is enough, nutritious, safe and acceptable. The right to have access to housing requires legal security of tenure, availability of services, materials, facilities and infrastructure, affordable, habitable, accessible, located close to social amenities, and culturally adequate housing. The right to have access to water requires sufficient, affordable, and clean water. In addition, free basic water. The right to have access to health care services requires availability, accessibility, appropriateness, and acceptability. The protocols The content and format of the protocols have been evolving over time. The first set of protocols took a minimalist approach as they were developed with the view that the information requested should not be too much. It focused on clearly defined, narrow and limited information. The second set of protocols took a maximalist approach. The Commission developed indicators, methodology, information gathering and monitoring systems as well as quantitative questions some of which were incorporated into the protocols for that cycle. Unlike the first set, the second set of protocols was extensive and requested detailed statistical data from government departments. Thus far, there have been six set of protocols. The protocols are structured into seven major headings: New framework / policies / strategies / legislation the protocols go further to define what these entail; Progress in the implementation of key programmes and projects; Communication strategies; Assessment of actual outcomes in relation to constitutional obligations (s7(2)) obligations to respect, protect, promote and fulfil; Key challenges faced in aiming to achieve progressive realisation; 15 Benchmarks are goals or targets that are specific to the individual circumstances of each country (see Maria Green (2001) 1080). 7

9 Indicators used for assessing delivery performance; and Key monitoring and evaluation systems, findings and recommendations. Reporting on key programmes and projects, as per the protocols, should normally cover the following issues: Political and legal mandate, including participatory processes; objectives; intended beneficiaries and vulnerable groups; strategic planning targets set; budget allocation; targets achieved; implementation difficulties; actual expenditure; and audited expenditure. Assessing the information received and the report After the government submits the necessary information, before writing its report, the Commission verifies the information through various means including internal research and consultation with communities. After which it writes its report. To date, the Commission has published six reports. According to section 15(2) of the Human Rights Commission Act 54 of 1994, the Commission must submit an annual report to parliament, as well as quarterly reports to the president and parliament on investigations and findings. It may also submit reports at any time that it deems it necessary to do so. Hence, the Commission tables the report it writes after the monitoring process in parliament. B. Key challenges to monitoring socio-economic rights A number of challenges exists that impact on the ability of the Commission to effectively monitor the realisation of socio-economic rights. The challenges include the following. Lack of a precedent at the domestic level Monitoring the implementation of socio-economic rights has, no doubt, been a difficult task to carry effectively as there was no precedent at the national level to follow. Only models of international human rights monitoring bodies such as the UN Committee on Economic, Social and Cultural Rights (CESCR). The commission had to develop the monitoring process from scratch, which has been challenging but thus far getting better and better. Indicators of progress The Commission s reliance on statistics to measure progress could pose as a challenge because statistics in South Africa, like in other countries, are highly contested. Statistics that government often uses are usually misleading as they often paint a biased (often good) picture of progress made in the delivery of services. Usually, these statistics would show numbers of, for example, people who have access to water but exclude figures on those disconnected afterwards. It is not clear to what extent the Commission verifies the statistics received from government. Also, reliance on the MDGs has been to a limited extent, though government itself often speaks of its commitment to achieving these gaols, and at times, sings praises that it is ahead in meeting them. The challenge is therefore to include broad analysis specifically on how government is achieving these goals. Providing detailed information on this would not be an added task as such because such information is already being compiled by the government for reporting to the relevant UN agencies. 8

10 Content of the protocols Although the Commission has the principles emanating from court judgments in monitoring and assessing whether the state is complying with its constitutional obligations, the protocols do not request specific information pertaining to the government performance on the key elements of the reasonableness standard. The protocols focus more on the generic obligation of the state to respect, promote, protect and fulfil the rights and have broad questions on adopted legislative, policy and programmatic measures. More emphasis needs to be placed on whether the measures taken are comprehensive, coherent, coordinated, flexible, reasonably formulated and implemented, and pay attention to the needs of those in desperate circumstances, transparent and allow for participation of relevant stakeholders. In addition, one of the key challenges to enforcing socio-economic rights in South Africa is the nonenforcement or inadequate enforcement of court orders. But the protocols do not specifically request information relating to how a particular government department has been implementing court orders. Moreover, the protocols do not contain followup questions on the extent to which recommendations made in the previous report have been accepted and implemented. Low protocol response rates from organs of state / delays This has been attributed to the lack of capacity within state organs and other relevant stake holders, as well as little commitment from state organs. The latter can be attributed to the fact that section 184(3) does not oblige the organs of state to report to the Commission; the organs of state only have an obligation to provide information to the Commission upon requests by the latter. If the Commission does not request information, the organs of state do not have a duty to voluntarily provide information or report to the Commission on the measures they have taken towards realising socioeconomic rights. Even when requested, some organs of state take a long time to respond - they would either not meet the deadlines or provide inadequate information or both. This has affected the production process of these reports and has forced the Commission to invoke its power of subpoenas to compel government representatives to cooperate with the monitoring process. This, however, poses a further challenge as the issuing of subpoenas creates an atmosphere that is not conducive to the process of constructive dialogue envisaged under a human rights monitoring process. It has resulted in tensions between the Commission and the organs of state. To overcome the above challenge, the Commission proposes to assist these organs to develop systems to capture, process, and manage information that the Commission will ultimately request from then. 16 Confidentiality of protocol responses Information received from the government departments is not accessible to the public prior to the publication of the reports. The Commission sees this as a way to maintain its independence with regard to the assessment of information collected. 17 The Commission withholds the information collected from the public because, as stated by some of its representatives, the information is given by the departments in good faith 16 South African Human Rights Commission (SAHRC) Sixth Economic and Social Rights Report (August 2006) at xviii. 17 See generally, Busi Sithole & Zandile Nkanyane Monitoring socio-economic rights: The SA Human Rights Commision s Second Annual Cycle (1999) 2(2) ESR Review

11 arising out of a specific constitutional duty. 18 Some have argued that providing information received from the government departments to civil society organisation is important for the latter to prepare shadow reports or alternative reports to Parliament parallel to that of the Commission 19. Notwithstanding, the Commission s stance to keep the protocol responses confidential seemed of little purpose as some government departments have indicated their willingness to make their responses public. 20 Collaborations between the Commission and NGOs As mentioned earlier, collaborative efforts between the Commission and the NGOs played a significant role in establishing the regime for monitoring socio-economic rights. And, for the first cycle of reporting, the Commission allowed the participation of civil society organisations in the reporting process. However, the subsequent involvement of civil society organisations in the reporting process has been declining. In preparation for the second report, civil society involvement was limited only to commenting on the questionnaires (protocols). According to some representatives of the Commission, amongst others, this is because of the financial constraints they experience. 21 This approach compromises the far reaching potential of the monitoring process. Some commentators have contended that the lack of effective participation by NGOs in the report process paints a bad picture about the Commission. They argue that NGOs can provide the Commission with their own experiences and evaluation of government programmes and policies pertaining to socio-economic rights which could be used to verify government responses. They further argue that as the premier institution tasked with the promotion and monitoring of human rights in South Africa, the Commission should operate in a transparent, open and participatory manner. 22 III. Conclusion It is unquestionable that, since the dawn of democracy in South Africa, progress has been made in fulfilling socio-economic rights. Socio-economic rights have been entrenched in the Constitution as justiciable rights. However, to ensure that these rights are not just mere paper rights, one does not only have to hold the government accountable through requiring them to show that the strategies that they have adopted in realising these rights are reasonable but also through monitoring and assessing these strategies in order to understand their efficacy. And to better carry out this monitoring process, it is important to have clear standards and indicators in place. Dr Lilian Chenwi, Researcher, Socio-Economic Rights Project of the Community Law Centre, University of the Western Cape, South Africa 18 As above. 19 See generally, Christof Heyns Update on the SA Human Rights Commission: Switching on the NGO Monitor Screens (1999) 1(2) ESR Review Jonathan Klaaren (2005) Busi Sithole & Zandile Nkanyane (1999). 22 See, for example, Nomthandazo Ntlama Monitoring the implementation of socio-economic rights in South Africa: Some lessons from the international community (2004) 8 Law, Democracy and Development at ; Danie Brand & Sandra Liebenberg (2000). 10

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