Friday, August 7, 2009

Some thoughts about "engagement"

Still thinking about the remarkable Residents of Joe Slovo case:

In mandating engagement between the authorities (two responsible government officials and a government-created company) and the residents, the Court must walk a fine line. What exactly must each side do?

First, they must act "reasonably and in good faith," as Justice Sachs puts it (par 407). Justice Sachs in the same paragraph quotes this injunction from Olivia Road: those facing eviction must "not content themselves with an intransigent attitude or nullify the engagement process by making non-negotiable, unreasonable demands. People in need of housing are not, and must not be regarded as a disempowered mass. They must be encouraged to be pro-active and not purely defensive. Civil society organisations that support the people's claims should preferably facilitate th engagement process in every possible way." As a matter of law, one can imagine the elaboration of a body of principles and rules that explain what conduct is reasonable and in good faith, and what is, instead, intransigent or otherwise unreasonable. As a matter of practice, it seems the Court hopes that people "on the ground," such as "civil society organisations," will help to guide the process and to bring all sides to the table and to agreement or at least mutual respect. No doubt the Court would much prefer this practical accommodation to a fresh series of legal disputes, now focused on the elements of proper engagement.

Second, what if -- despite reasonable efforts on all sides -- the parties still disagree? The Joe Slovo decision makes clear that if agreement cannot be reached, the evictions that the authorities sought (and that the Court approves, after imposing a set of conditions meant to make the evictions comply with both the PIE statute and the constitution) will go forward. The residents, Justice Sachs notes, "state that engagement can only be meaniangful if the parties meet as equals without the eviction order hanging over them." (Par 402). This, however, the Court rejects. Justice Sachs writes, "It is important to note that the order of this Court requires meaningful engagement in relation to the stage the process has now reached. This does not envisage re-opening the basic modalities of the upgrading and relocation scheme." (Par 405).

Justice Ngcobo reasons similarly, saying: "What must be stressed ... is that the process of engagement does not require the parties to agree on every issue. What is required is good faith and reasonableness on both sides and the willingness to listen and understand the concerns of the others side.... Mutual understanding and accommodation of each others' concerns, as opposed to reaching agreement, should be the primary focus of meaningful engagement. Ultimately, the decision lies with the government. The decision must, however, be informed by the concerns raised by the residents during the process of engagement." (Par 244; emphasis added.)

Consistently with these views, the actual order shaped by the Constitutional Court -- an order whose detailed specification of the elements of protecting the residents in the process of eviction in itself attests to the justices' full "engagement" with the residents' plight -- requires the residents to leave the Joe Slovo Informal Settlement according to a 45-week schedule annexed to the order, unless the parties through engagement agree on different dates within 20 days from the date of the Court's decision. (Paragraph 7, sections 4-7). After that, the order directs the authorities "to engage with the affected residents in respect of each relocation that is to take place," at least one week prior to the scheduled date for the relocation; this engagement's focus is on how, rather than whether, to carry out the relocation, though no topic is ruled off limits. (Paragraph 10, section 11.)

Though the justices' attitudes to the residents' claims of lawful status varied dramatically, reflecting very different views of the relative weight of traditional legal interpretation and constitutional reconstruction, all were united in their concern for the residents. The order ultimately approved by the Constitutional Court provided the residents with many protections that they had not been able to secure from the authorities or from the lower court. Nevertheless, the Constitutional Court unanimously approved an eviction order -- in itself a painful and even ironic step in a South Africa trying to overcome the heritage of apartheid, in which "forced removals" were a notorious feature. In doing so, the Court deferred to the government's view that the Joe Slovo area could not be upgraded while the residents remained on the land, though the government's own housing policy had endorsed "a phased in situ upgrading approach [i.e., without relocations] to informal settlements, in line with international best practice" (par 364). Moreover, the Court made clear that engagement, important as it is, is circumscribed; a failure to agree would not block the evictions but instead would mean they went forward.

The Court's decision reflects the hope that engagement will still be meaningful to those facing eviction even though they do not have the power to block the evictions themselves. Whether such engagement will be viable seems uncertain; it may be that when disagreement has become as sharp as it was in this case (where residents at one point had burned tires to block a major highway running by their homes), it is too late for engagement to bring people back together. But perhaps it is not too late -- and it surely is worth the effort to try.

The Court, in any event, had no real alternative, if it believed, as it did, that the government's basic program was a reasonable exercise of its discretion in meeting its constitutional duty to provide housing. One could quarrel with this assessment, but the unanimity of the justices' decision on this score suggests that the Court felt -- reasonably, it seems to me -- that a contrary decision would have invaded the core policymaking discretion of a democratically-elected government.

The relocations had to be upheld, or the residents (and other residents in the future) would have a veto that might benefit neither themselves nor others waiting for housing. Thus Justice O'Regan writes that "a consideration that to my mind weighs heavily in the balance is that is not only the occupiers who are affected by the plan. Thousands of other households have already co-operated with the respondents [the government authorities] in the hope that their co-operation will hasten the building of the housing project and result in their receiving permanent housing." (Par 303). Justice Sachs makes a similar point, saying that the plight of these other households is "highly relevant ... to the justness and equity of requiring residents who are stalling development to accept temporary relocation." (par 398) It seems fair to read in these comments some measure of judicial impatience with the remaining residents.

The Court's response was not, however, to disregard the residents' concerns. Instead, it sought to uphold the program while restoring the link between those carrying out the program and those who were the program's subjects. The goal is to recognize the residents as people while also recognizing the rights of the whole of South Africa's people to make binding decisions. This is not an easy matter, but it is the right way to go.

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