(Kampala, Nairobi, Geneva, 13 June 2019) The African Commission on Human and Peoples’ Rights published yesterday a landmark resolution that addresses the role of private actors in education and health.
The resolution on ‘States’ obligation to regulate private actors involved in the provision of health and education services’ reaffirms that African States are ‘the duty bearers for the protection and fulfilment of economic, social and cultural rights, in particular the rights to health and education without discrimination, for which quality public services are essential’. It also expresses concerns at the current trend amongst bilateral donors and international institutions of putting ‘pressure on States Parties to privatize or facilitate access to private actors in their health and education sectors’ in disregard of these obligations.
In this context, the African Commission calls on States to ‘take appropriate policy, institutional and legislative measures to ensure respect, protection, promotion and realization of economic, social and cultural rights, in particular the right to health and education’ by adopting ‘legislative and policy frameworks regulating private actors in social service delivery’ and ensuring ‘that their involvement is in conformity with regional and international human rights standards’.
The resolution refers to and sets standards that are in line with the recently adopted Abidjan Principles on the human rights obligations of States to provide public education and to regulate private involvement in education. The Commission notably calls on States to ‘consider carefully the risks for the realization of economic, social and cultural rights of public-private partnerships and ensure that any potential arrangements for public-private partnerships are in accordance with their substantive, procedural and operational human rights obligations.’
Salima Namusobya, the Executive Director of the Initiative for Social and Economic Rights (ISER), stated: ‘We have seen the realisation of economic, social, and cultural rights hindered by the uncontrolled and unregulated development of private actors in social services delivery, such as health and education. Governments’ increasing reliance on private schools and clinics is facilitated by declining State investment in these essential public services and a blind belief in market solutions. The African Commission’s resolution is an important step towards ensuring greater accountability for States to deliver quality public services, as they are legally bound to do under national and international law.’
Research conducted globally and across the African continent in recent years has documented how the failure of States to adequately invest in public services, pro-market ideology and inadequate regulation of the private sector are leading to increasingly detrimental impacts on human rights: growing discrimination and segregation owing to unaffordable fees, lack of transparency and accountability, inequity, misuse of resources, and corporate control over services which are essential for the development of open and fair societies.
Human rights researchers, scholars, activists and bodies have provided a strong framework in the last years to analyse and respond to this phenomenon. In February 2019, over 50 eminent experts from around the world adopted in Côte d’Ivoire the Abidjan Principles on the right to education which unpack States’ existing human rights obligations in this context. In the field of health, in April 2019, ISER launched an analysis of private involvement in health using the human rights framework.
Sylvain Aubry, a Legal and Research Advisor at the Global Initiative for Economic, Social and Cultural Rights (GI-ESCR), commented: ‘With this resolution, the African Commission is sending a powerful message to the world. It reaffirms the inalienable human rights requirements to provide quality public services and to regulate private actors, and the obligation of States to meet their human rights standards, such as the detailed guidelines provided in the Abidjan Principles. Human rights scholars, activists and communities across the continent have repeatedly said that a market-approach to social services is not compatible with human rights standards. We hope that African leaders will put the resolution in practice, and that it will lead the way for other regional and UN human rights mechanisms to follow suit.’
“I think the resolution is a welcome development and a bold step on the part of the African Commission given the weak or lack of regulation of the activities of private actors in many African countries. This resolution becomes an important standard that can be used to prevent or minimize the negative impacts of the activities of private actors in the enjoyment of socioeconomic rights. Given the impact of the activities on non state actors on access to water, it is crucial that future guidance from the African Commission on private actors addresses more than health or education.” Ebenezer Durojaye, Dullah Omar Institute.
The Initiative for Social and Economic Rights, the Global Initiative for Economic, Social and Cultural Rights, Dullah Omar Institute, and the Right to Education Initiative welcome this commitment of the African Commission on Human and Peoples’ Rights to the realisation of economic, social and cultural rights and hopes that this will be followed by continuing work of the institution on these issues. The resolution as well as the interpretative guidance provided by the Abidjan Principles constitute a milestone in building and enforcing regulatory frameworks for private actors in social services and will strengthen government's' efforts to regulate private actors.
Documents:
Resolution on States’ Obligation to Regulate Private Actors Involved in the Provision of Health and Education Services - ACHPR / Res. 420 (LXIV) 2019: https://bit.ly/31u1VSu
Abidjan Principles on the right to education: https://bit.ly/2HJDxmP
Abidjan Principles website: https://www.abidjanprinciples.org
Contacts:
Salima Namusobya (EN), Executive Director, Initiative for Social and Economic Rights: dir@iser-uganda.org
Sylvain Aubry (FR/EN), Legal and Policy Adviser, Global Initiative for Economic, Social and Cultural Rights: +254 7 88 28 96 34 / +33 7 81 70 81 96 / sylvain@gi-escr.org
Delphine Dorsi (FR/EN/ES), Director, Right to Education Initiative: +44 77 06 756 077 / delphine.dorsi@right-to-education.org
Prof Ebenezer Durojaye (EN), Project Head and Senior Researcher, Socio-Economic Rights Project, Dullah Omar Institute, University of Western Cape: +27 71 918 9056 / edurojaye@uwc.ac.za