On 4 and 5 Feb 2020, we trained at least 20 activists and leaders of minority and indigenous communities on how to use the cesr OPERA Framework in their work.
This is a method of assessing compliance with the obligation to fulfill economic, social and cultural rights.
The cesr OPERA framework is a tool for holding institutions into account for their failures using both judicial and non-judicial processes. This framework can allow the policy makers to know what works and what does not hence institute reforms.
Many activists and community leaders find it extremely hard to show causal links between public policy and human rights outcomes.
Many actors have developed numerous tools for monitoring economic, social and cultural rights fulfillment around the world.
CESR OPERA framework is a very practical framework which makes use of different tools and techniques towards provision of a more comprehensive assessment on how various public policies contribute or fail to contribute towards fulfillment of socio-economic rights.
Meaning of cesr OPERA Framework
OPERA are initials which means:
O = Outcomes
PE = Policy Efforts
R = Resources
A= Assessments
In the course of using the OPERA framework, we will engage in various techniques such as budget analysis and fiscal policy analysis in order to determine whether the state complies with international standards on allocation of resources.
We credit the Center for Economic and Social Rights for developing this framework as part of its efforts to promote greater accountability in enjoyment of economic, social and cultural rights.
It is our sincere hope that activists will find this framework ideal in their evidence-based advocacy efforts around the world. Cesr OPERA framework will organize our thoughts in articulating issues affecting our communities and also expose any violations.
CESR OPERA framework will play a central role in uncovering the weaknesses in the country’s social and economic policies which are responsible for violations in access to basic services.
We want to know what works and what does not so that the latter can be changed for the better.
International Covenant on Economic social and cultural rights (ICESCR)
There has been a lot of politics between many parties on the superiority between civil political rights and economic social and cultural rights. The latter are reported to have been developed recently and hence the notion of ‘second generation rights.’ On the other hand, the civil political rights have been litigated on over many centuries.
According to the Maastricht Guidelines, states are subject to three main obligations: to respect, to protect (prevent violations of esc rights by third parties) and to restrain from interfering with the enjoyment of economic, social and cultural rights.
Up to this point, we need to bear in mind that the fulfillment of economic, social and cultural rights requires enormous amounts of resources.
Non discrimination
The states have a duty of non-discrimination in fulfillment of economic, social and cultural rights. This is a critical principle in the human rights law. States should avoid formulation of discriminatory laws, programs, policies and expenditures. States have an obligation to “take concrete, deliberate and targeted measures” towards ending discrimination.
However, it is important to note that this principle allows differential treatment when necessary towards solving historical injustices. A good example is the Equalization Fund in Kenya. This fund was established to address historical marginalization and unequal development in Kenya.
Progressive Realization
In recognition of the fact that there are limited resources, the ICESCR came up with the question of progressive realization which calls for steps which are deliberate, concrete and targeted towards meeting state obligations.
According to opera, policies and programs should be designed in a way in order to enhance acceptability, accessibility, adaptability and quality of services towards realization of esc rights. In short this is popularly referred to as AAAAQ or ‘4A’ criteria.
Availability
Goods and services should be available in sufficient quantities. If this was the case in Kenya, we won’t be speaking of inadequate quantities of essential drugs in Kenyan health facilities or water rationing in our homes.
Accessibility
Under this specific requirement, goods and services should be accessible both physically and affordable. When the goods are physically available but they are not affordable then we can say that they are not yet accessible to the segment of the population at the bottom of the population pyramid. Services such as healthcare and education should be made available to all citizens without any form of discrimination.
States must be taken into task when they create retrogressive policies which reduce the enjoyment of access to economic, social and cultural rights. The most recent retrogressive attempt to reduce access to the use of National Hospital Insurance Fund (NHIF) for the voluntary contributors through an internal memo was cancelled by an order by President Uhuru Kenyatta of Kenya. These retrogressive policies are prima facie violation of the International Covenant on economic, social and cultural rights (ICESCR).
Under progressive realization of esc rights, advocates can challenge austerity measures which have a negative impact on progressive access to economic, social and cultural rights. Austerity measures should be temporary, necessary and non-discriminatory in a way that the available alternatives have negative impacts on enjoyment of socio-economic rights.
Maximum available resources
States are required by international law to use the maximum available resources towards. In order to find out whether the state is complying to this requirement, as an advocate you should go beyond analyzing state revenues and expenditure. You should also assess economic policy such as debt, monetary policy, deficit financing and financial regulation.
Activists and human rights advocates must remain vigilant considering that sometimes the state may allocate sufficient resources but they end up not being spent.
Our courts should also be prepared to conduct macroeconomic policy analyses in order to determine whether the state is allocating the maximum available resources towards enjoyment of economic, social and cultural rights.
It’s doubtful whether courts will be willing to conduct reviews and analyses of national or county budgets to come up with conclusions in determining cases on maximum available resources.
It is also critical for human rights advocates and activists to monitor the implementation of court decisions on economic, social and cultural rights. Under this, we can recorded facts about the case, what remedies were granted? what is the current level of implementation and the subsequent impact?
Rights-based budget analysis
Budget analysis enables human rights advocates to gather evidence on whether the state budget is in line with human rights obligations. Rights-based budget analysis has been used by courts, national human rights institutions (NHRIs) as well as governments.
Rights-based budget analysis should be conducted on a regular basis for it to have a substantial impact on access to esc rights.
After conducting an in-depth budget analysis, esc rights advocates are advised to engage in dialogue on outstanding issues of human rights violation. However, it is important to note that there are some government officials who do not see any link between public budgets and human rights.
When conducting an analysis, it is good practice to have a look at state revenues, monetary policies, deficit financing and not only on expenditure side of the budget. You can analyze for example how debt servicing is having an impact on access to economic, social and cultural rights.
Investigate the implication of specific tax policies on esc rights. This is an area which has not yet been explored in details. You can contract social sector expenditure with tax rebates in your country. Just an example.
Participation
In assessing esc rights fulfillment, we note that public participation should not be tokenistic. All members of the society should participate without any form of discrimination.
It’s my sincere hope that you have enjoyed reading the CESR OPERA framework and will use it in your work.
During a seminar in Spain in March 2012, Bruce Porter, the Director of Canada’s Social Rights Advocacy Center noted that many “courts are sometimes less impressed with international data than with government data.”
Use of costing is another strategy which can enhance human rights work. That is quantifying the costs of an inaction.
Application of Econometrics
This strategy makes use of statistics and mathematics to generate the evidence on the obligation to fulfill economic, social and cultural rights.
Way forward
In addition to documenting human rights violations, we also need to propose possible solutions.
Read More:
– Claiming women’s economic, social and cultural rights
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