Mrs Irene Grootboom lived with her and sister’s family in a shack, about 20 meters square in Wallacedene, an informal settlement without water, electricity, sewage or rubbish collection services in the western Cape Town, South Africa. Most of the residents had been on the waiting list for subsidised housing for years. Mrs Grootboom and a few hundred others decided to take matters into their hands in 1998 and occupied a vacant farm that was privately owned and had been earmarked for low-cost housing. They were evicted through a court order, their new-built homes were bulldozed and their possessions burned. When a High Court judgement granted them government shelter, the government appealed to the Constitutional Court. The Court had to interpret article 26 of the new South African Constitution, Republic of South Africa, which provides that a) ‘everyone has the right to have access to adequate housing’; b) ‘the state must take reasonable legislative and other measures (such as policy and programs) to achieve the progressive realisation of this right’; and c) ‘within its available resources. The court decided to test whether the Cape Metropolitan Council’s housing program was ‘reasonable’.
The Grootboom case was hailed by lawyers, jurists, civil society organisations all over the world. The Court found that , while the long-term policies were laudable, because there was ‘no express provision to facilitate access to temporary relief for people with no access to land, no roof over their heads, for people living in intolerable conditions and crisis situations’, the program was not reasonable and therefore unconstitutional. The judgement demonstrated that the highest court could review and enforce the obligation of states to fulfil rights, by using a standard of ‘reasonableness’: ‘A Court considering reasonableness will not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent. The question would be whether the measures that have been adopted are reasonable. It is necessary to recognise that a wide range of possible measures could be adopted by the State to meet its obligations. Many of these would meet the requirement of reasonableness. Once it is shown that the measures do so, this requirement is met.’ In applying this principle, the Constitutional Court considered whether the policy or program was comprehensive, coherent and coordinated; balanced and flexible; allowed for short, medium and long-term needs; was reasonably conceived and implemented; and was transparent. (www.concourt.gov.za/files/grootboom1/grootboom1.pdf)
In India, we have a recent Supreme Court case where the construction of the B R Ambedkar Park in Lucknow and other memorials of Dalit icons by the Mayawati-led Uttar Pradesh Government are under judicial review. The Court is considering whether it is legally permissible for any government to incur colossal expenditure from public exchequer for constructing of memorials. A Supreme Court Bench observed on September 18, 2009: ‘Suppose today the legislature decides that 80 percent of the budgetary allocation should be spent on such works of memorials and statues, is it not justiciable? The Cabinet and legislature have to act within the framework of the constitution.’ Further, it observed on October 7, 2009: ‘We are not concerned with politics here. One of the important questions in these petitions is how much money you (government) can spend for construction of memorials or statues. Can you (government) spend 50 percent of the budget for this?’
Thus, whether a state is in violation of its constitutional obligations may involve judgements about resource allocation and policy prioritisation. It is true that in adjudicating on such matters, courts in countries have been reticent to intrude on the terrain of the executive or other public policy makers, or to issue rulings implying the redistribution of resources from one sector at the expense of another. However, the standards like reasonableness, retrogression, right to life, minimum core obligations, and non-discrimination are useful in setting a threshold for acceptable state conduct.
Other than India, there have been some positive developments in national and regional law and jurisprudence on resource allocation and budget prioritization. For example, Gambian court has ruled that a general lack of resources must also be differentiated from the ability to realize a specific duty. In the course of analysing the adequacy of mental health care in Gambia, the government disclosed that it actually had a sufficient supply of medicines for mental health patients, but that they had not been distributed. Consequently the African Commission on Human and Peoples’ Rights could justifiably order in 2003 that the state provide these medicines to those who had need of them, even though it noted the state’s severe resource constraints. Courts in some jurisdictions have considered whether resources allocation is consistent with constitutional obligations. When the government of South Africa claimed that it lacked resources to provide anti-retroviral drugs to pregnant women, the Constitutional Court in 2002 did not accept the claim. The Court’s position was that the government could not argue that it lacked the resources to provide the drugs without developing a plan to determine the cost of ‘rolling out’ provision across the country as part of a program for people living with HIV/AIDS, and without assessing the various resources at its disposal. In 2004, the Constitutional Court of Colombia ruled that the state must draw up a time-bound plan to allocate resources to meet economic and social rights of internally displaced people.
Much before the Courts, the budget analysis and assessment have emerged as a key technique by the political and social activists in pressing the governments to meet their constitutional obligations. This often pinpoint inadequacies in expenditures, misdirection of funds or a ‘misfit’ of expenditures relative to the governments’ stated social commitments particularly with regard to its ‘positive’ obligations (obligations to take action) rather than its ‘negative’ obligations (obligations to desist from doing something. Different approaches also prevail amongst the civil society organisations to the resource issue. One approach is to emphasise the hidden benefits of policies that fulfil peoples’ basic needs, arguing that they lead to a virtuous cycle of social well-being and financial stability for all. Another approach is to take the moral high ground and argue that peoples’ needs and rights must be fulfilled regardless of the cost. A third approach is taken by those who engage in budget analysis. In analogy with the violations approach, they begin by trying to establish not the maximum available resources of the state, but which budget allocations are most blatantly not using maximum available resources, that is, diverting money to less legitimate causes.
All too frequently, our states seek to justify the non-implementation of our fundamental rights and the violation of minimum economic and social rights on the grounds that they lack financial, technical or human resources. In considering such claims, it is important to look at whether the state has given sufficient priority to rights when setting budgets and allocating resources. If we take the international conventions into account, at least two further basic principles apply. ‘Even where the available resources are demonstrably inadequate, the obligation remains for a State Party to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances.’ In addition, ‘even in times of severe resource constraints, whether caused by a process of adjustment, of economic recession, or by other factors, the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes.’ (See Committee on Economic, Social and Cultural Rights, General Comment 3, The nature of states parties’ obligations, UN Doc, E/1991/23)
Yet, we are always faced with the questions about how much lawsuits can actually achieve. After the Grootboom case, the state purchased the squatted farm and some surrounding land to develop low-cost housing for the Grootboom group and others. On the site named ‘Grootboom’, several thousand people live. However, the only amenity that I could see during my field visit in 2005, was a foul-smelling sanitary block with about 12 toilets and some showers and washbasins, most of which were blocked. At the time of her death in August 2008, Irene was still living in a shack. Even when the Supreme Court case is on, the UP Government and Mayawati are going ahead with the construction of other memorials and statues in other parts of the state.