“The courts are one of the few institutions that have stood up to autocracy,” says Duncan Green, Oxfam Great Britain’s Senior Strategic Adviser in his book How Change Happens. Debatable though this assertion may be, it has proven true in enough contexts that a strategy of accessing courts warrants serious consideration by civil society budget groups, particularly as an increasing number find themselves working in ever more constrained public spaces. In recent years many CSOs have appealed to courts for access to information from governments under Right to Information laws. Where a smaller number of CSOs are breaking ground is in looking to the courts when they want to challenge the government’s budget policies and practices — for example, around such issues as under-spending on social programs or discrimination in spending. Courts have agreed to hear a good number of the cases and, in many, have ruled in favor of the civil society claims.
Yet while it would be tempting to encourage all budget CSOs to incorporate a legal component into their advocacy strategies, accessing courts can be resource intensive and time consuming. This is why CSOs generally go to court only as a last resort, when all appeals through normal administrative channels have failed, or the government is so insensitive to public opinion that direct engagement would be pointless. Even in these cases, however, a decision to go to court should be made only following some careful thought. A recent publication by the Overseas Development Institute (ODI) discussing a 2008 ruling by the Supreme Court of Bangladesh provides some useful pointers for civil society to consider.
Based on its research, ODI maintains that legal action must meet some minimum conditions to have a real chance of improving outcomes for poor people: there needs to be a progressive legal framework in place, a sympathetic judiciary, and access to legal advice and assistance. Experiences of IBP partners to date around cases involving the public budget seem to bear this out.
A case pursued by the Asociación Civil por la Igualdad y la Justicia (ACIJ) in Argentina was based on a provision in the constitution of the City of Buenos Aires that guarantees the right to education to all children from the age of 45 days. In response to challenges relating to the shortage of space in schools and the resulting long waiting lists, particularly in poorer neighborhoods, the municipal government maintained that it did not have sufficient funds to build and staff enough classrooms to fulfill its constitutional obligation. ACIJ provided evidence to the court that over the course of several years the government had not only consistently underspent its infrastructure budget but had disproportionately directed the funds it had spent to wealthier neighborhoods. The court ruled that the government had violated the children’s right to education and ordered it to construct the necessary classrooms to eliminate the waiting lists.
The Indian Supreme Court provides the most compelling example of the power that a sympathetic judiciary has to change people’s lives. When the government of Rajasthan refused to release emergency stores of food in the face of widespread starvation, it was taken to court, with petitioners charging that the government was violating the right to food of people in that state. The case ultimately landed before the Supreme Court, which ordered the national and state governments to fully fund and effectively implement a series of programs, some that deal directly with food (such as school food programs), and others related to people’s capacity to provide adequate food for themselves (such as work programs). The Court has maintained supervisory powers over the case since 2001, issuing a series of interim orders and appointing commissioners who monitor and analyze government compliance with the Court’s orders.
Duncan Green has said, “The law will remain an essential weapon in the armoury of activists around the world…. The challenge will be to build bridges between legal activism and other efforts to influence the system, since the two worlds are often divided by impatience, different theories of change, or the chasm of language.” Indeed, many lawyers are allergic to the arrays of numbers in public budgets, but over the past decade there has been a growing appreciation among public interest lawyers of the centrality of public budgets to many of their issues of concern. This has been matched with a willingness to learn the jargon as well as the technical, legal, and political issues surrounding budgets. It was public interest lawyers, for example, who brought the Right to Food case to the Indian Supreme Court described above. And, in South Africa, the public interest Legal Resource Centre was instrumental in a case that the Treatment Action Campaign (TAC) brought to the Constitutional Court that challenged the government’s failure to spend funds on antiretroviral medicines (ARVs) and drugs to prevent the transmission of HIV from the pregnant mother to her child.
Courts have traditionally been reluctant to intervene in budget-related matters out of a misplaced belief that all budget decisions fall solely within the legislature’s ambit. CSOs that have managed to overcome this reluctance to win favorable decisions often then face the hurdle of ensuring that the government complies with the court’s orders. In the Argentine case mentioned above, the government started dragging its feet in complying with the court-supervised agreement it had reached with ACIJ. After a couple of years of trying to get full compliance through agreed channels, ACIJ adopted a multipronged effort to pressure the government. This included lobbying the Minister of Education, going to the media, and launching online petitions designed to put some muscle behind ACIJ’s efforts to get the legislature to ensure adequate funding for education. The effort was effective in persuading the government to fully carry out the agreement.
Indeed, the most effective strategies for ensuring that litigation will have a positive impact on the lives of the poor seem to be those that link court action with grassroots mobilization. An undoubted key to the success of the Treatment Action Campaign (TAC) case was the large-scale, dramatic demonstrations that TAC was able to call on a regular basis. Courts are not immune to the pressure such mobilization generates through media attention that, in turn, provokes public outrage and broad-based calls for action. This is good news for IBP partner the Social Justice Coalition (SJC), which filed a case in court in the fall of 2016 as part of its ongoing campaign to improve basic sanitation services in informal settlements around the city of Cape Town. As in the TAC case, the SJC litigation will be bolstered by an intensive effort to mobilize residents and engage the media over the years.
As public space narrows in countries around the world and appeals to government agencies and to legislators become more challenging and often ineffective, going to the courts may also be more difficult. A previously progressive legal framework, for example, may be repealed and replaced with weaker guarantees. Nonetheless, as CSOs continue their search for creative and effective ways to advance the rights of those they represent in an ever more hostile environment, it is essential to remember Duncan Green’s wisdom. Courts, as a separate branch of government, often act out of a conviction as to their own autonomy and importance, and provide redress where none is otherwise available.
India’s Integrated Child Development Scheme (ICDS) provides food and health care to more than 100 million children and pregnant mothers around the country, employing 2.7 million workers. The 40-year-old program is chronically underfunded and workers earn less than half the government’s minimum wage. Yet in 2016, government decision makers at the national and state levels were planning draconian budget cuts that would further weaken the ICDS’ ability to deliver services. In Maharashtra, a state with the sixth highest malnutrition burden in the country, the planned budget for child nutrition was cut by 62 percent, down to 0.5 percent of the state’s total budget.
CBGA, a long time IBP partner, quickly identified and publicized the scale of the proposed cuts in Maharashtra and across the country. At the national level, massive protests by ICDS workers already had the government back on its heels. In Maharashtra, IBP partner SATHI helped bring a wider movement of health organizations — the Right to Live campaign — to join with the state’s ICDS workers union to analyze the cuts and plan joint actions. SATHI and other civil society organizations played a less visible support role, while the workers staged a massive protest in Mumbai. Maharashtra’s Finance Minister agreed to reverse the cuts, and nearly all funding was restored in the next parliamentary session. While the immediate crisis was averted, ICDS funding is still inadequate, its workers continue to be exploited at low wages, and there are continuing threats to privatize the program, despite court rulings to the contrary.
In South Africa, our partner the Social Justice Coalition (SJC) has organized an expanding campaign to convince the government of Cape Town to invest in sanitation infrastructure that meets the needs of residents of poor communities — and allows them to live with greater dignity — while also cutting costs in the long term. The government has consistently resisted these demands, and singled out the SJC for criticism. But the group has persisted, mobilizing its members to participate massively in the city’s own participatory budget process, which had previously been dormant and barely used. Thousands of residents have submitted budget requests, and SJC forced the government to take these demands seriously. In its latest move to force the city government to listen to its own citizens, the SJC is pursuing litigation.
The clear lesson from these cases is that there is rarely a shortcut to realizing rights and achieving tangible improvements for the poorest and most marginalized people. Neither the openness gains over the past decade nor the more recent restrictions on civic space have changed the fundamental fact that entrenched social and economic exclusion are deeply rooted in unequal power relations and sustained by status quo institutional systems. Meaningful steps toward more inclusive and effective governance means going beyond openness to navigating and reshaping politics. In the words of Daron Acemoglu and James Robinson, authors of the book Why Nations Fail:
“Making institutions more inclusive is about changing the politics of a society to empower the poor — the empowerment of those disenfranchised, excluded and often repressed by those monopolising power.”
For IBP and our partners, this presents a great opportunity, particularly in the increasingly challenging contexts in which we work. In both cases above, IBP was able to support engagement that combined sophisticated budget analysis with multipronged engagement strategies focused on enabling and leveraging collective citizen action on a significant scale. In both cases, the objective was to shift specific policies, funding for child nutrition and for dignified sanitation in informal communities, but more than that, it was about changing politics by building countervailing citizen power. Neither fight is over, but both have the potential to not only get a policy “win” but also to build a movement that democratizes the relationship between government and some of its most marginalized people.
According to a comprehensive study of over 100 cases of citizen engagement by John Gaventa and Gregory Barrett, “while people may engage with the state in a variety of ways, associations and social movements are far more important vehicles for gaining development and democratic outcomes than perhaps has been previously understood.” The experiences of IBP in India, South Africa, and elsewhere reinforce this message. Indeed we have seen it play out over the course of modern history, from the women’s suffrage movement to the influence of labor unions on working conditions in the U.S. and Europe, to the social media and people power of Tahrir Square. But it has also happened in a thousand smaller and less visible ways, as people have organized in cooperatives, savings groups, and cultural organizations. All of these forms of more spontaneous and more durable organizing and mobilizing have a role to play in make our societies and governments more democratic. As the famous observer of America’s fledgling democracy, Alexis de Tocqueville, put it, “The task of preserving political democracy, then, consists in creating countervailing forces not controlled by the state, which would involve citizens in the public sphere.”
In some ways, the closing of civic space and the increase in intolerant politics have rejuvenated citizen action. In countries across the world, people are looking for new ways to organize and are raising their voices. Despite clear evidence for the efficacy of people’s organizations and movements, we shouldn’t romanticize them. Such organizations and movements are very difficult to grow and sustain and are not the “magic bullet” for accountable governance. People, particularly from marginalized groups, face significant barriers to collective action and many protests fizzle out or fail to produce sustainable change. Nevertheless, the experiences of IBP and our partners, as well as many other organizations around the world, demonstrate the promise of bringing together different kinds of organizations and movements, from formal NGOs with specific technical capacities to more fluid mobilizations to cooperatives and unions. There is much to be learned about how to work most effectively together and leverage different tactics and capacities, but IBP is committed to exploring these questions and deepening our engagement with a more diverse set of citizen organizations and movements. Our experience, and an increasing body of evidence, tells us that if our work is to contribute to more inclusive governance and development, we need to better harness the collective action and mobilization of citizens to strengthen a vibrant ecosystem of organizations and movements that really brings power to the people.
In 2016 the Brazilian president was impeached in a sensational case that received global media attention. At the time, much of this attention focused on widespread allegations that the impeachment was related to corruption cases involving politicians from both the ruling and opposition parties. There was little public discussion on the substantive issue upon which the impeachment proceeding was based, which had been detected and revealed by the country’s supreme audit institution (SAI). In its audit of the Brazilian government’s 2014 accounts, the SAI had found that the government had used accounting tricks to underreport the budget deficit by billions of dollars, potentially violating the country’s fiscal responsibility law. The Brazilian Congress used the audit finding as the basis for impeaching the president.
This is not the first time that an audit report has brought down a government. In Canada, a 2004 audit report on the government’s misuse of public funds for a public relations program is widely credited with contributing to the electoral loss suffered by the incumbent party. Similarly, an audit report issued by the Indian SAI in 2014, on a questionable coal procurement contract, reinforced the image of the incumbent administration as corrupt. This view fed demands for accountability that became a rallying cry for opposition political parties, which ultimately led to the administration’s defeat in the 2015 national elections.
Nearly every country in the world has a functional SAI that is mandated with checking whether public funds are being managed properly and in line with sound financial management practices. SAIs go by different names and are frequently called: office of the Auditor General (in Westminster systems), the Court of Accounts (in Napoleonic systems), or the Board or Commission of Audit (in parts of Asia and Latin America).
SAIs assess the proper use of public funds by conducting financial audits that examine the legality of financial transactions and performance audits that assess whether public funds have been used efficiently and effectively. Audit reports issued by SAIs contain recommendations on how government can improve financial management.
However, too often, governments are able to ignore audit findings with impunity, especially when they do not face pressure to institute remedial measures recommended in SAI reports. In most countries, SAIs cannot sanction the government or compel the executive to take action based on audit reports. Instead, the SAI submits its findings to the national legislature, which must then decide whether to take formal action in response. While legislatures may have the legal authority to demand corrective action, in practice they often fail to sanction their governments or require recommendations be implemented. Legislative inaction can be a result of both partisanship based on the party affiliations of legislators and executives and a lack of understanding of the content of technical audit reports.
The failure of legislatures to act on audit findings is frequently compounded by SAIs’ own organizational challenges. SAIs often struggle to communicate their work to external audiences or sustain the interest of the media after a sensational headline has faded from view. And many SAIs insulate themselves from contact with the broader society, some fearing that any association with civil society organizations (CSOs) will lead to charges from the government that audit findings are biased and politically motivated.
As a result of weaknesses in legislatures and SAIs, audit reports seldom receive the level of popular scrutiny that they deserve.
Fortunately, SAIs increasingly recognize the need to engage with citizens. SAIs in Argentina, India, the Philippines, South Korea, and Tanzania have established mechanisms for engaging with citizens in creative and meaningful ways. These include mechanisms through which citizens can report fraud, waste, and abuse via “hot lines,” suggest audit topics for review, and participate in joint audit assignments and social audits. Such forms of public engagement has the potential for transforming the way in which the public views the work of SAIs.
IBP believes that SAIs and civil society organizations are natural partners with overlapping missions to promote accountability in the use of public funds. Greater engagement between SAIs and CSOs can be mutually beneficial. CSOs are sometimes better placed than SAIs to implement communications strategies that can pressure governments to take remedial action on audit findings. In countries in which SAIs lack powers and resources, CSOs can champion the need for independent and empowered SAIs. CSOs can also use their expertise on social sector topics and their presence on the ground to share information on critical areas of government operations that merit audit scrutiny, and they can even collect evidence on problems in these operations.
In turn, audits conducted by SAIs can be useful for civil society. SAIs have a formal mandate to investigate government finances and their audit reports often cover government operations on social sectors. CSOs can use findings contained in audits of social sectors to demand corrective actions from governments on issues that they care about and that can yield impactful results on government service delivery on the ground.
The case for greater engagement between SAIs and civil society is also consistent with an emerging consensus among experts that improved accountability will require not only stronger state and nonstate oversight institutions but also systems that promote better linkages among these institutions. Such engagement is particularly relevant in light of the shrinking democratic spaces around the world and the need for checks against government excesses. Profiling audit findings and the lack of remedial actions by governments could be a promising and cost-effective way to highlight the failure of governments to implement public-financed projects and to deliver services effectively. Such work can also be used to overcome legislative inertia on audits, and to expose government callousness in addressing these problems even after that have been flagged by independent audits.
The Social Justice Coalition (SJC) is a social movement from Cape Town, South Africa. For the past two years, the SJC has used budget analysis and advocacy as a tool to campaign for decent sanitation in informal settlements. IBP worked with the SJC to undertake research and analysis of Cape Town’s municipal budget in support of the broader advocacy campaign. Initial research in early 2015 focused strategically on those parts of the budget relevant to sanitation in informal settlements. Through that research we uncovered extremely low spending — less than 2 percent of the water and sanitation capital budget was going to informal settlements, even though informal households make up over 20 percent of the city’s population. Faced with this injustice, we began to view the budget process as a set of political moments and institutional processes through which the campaign could move.
The budget work became an important tactic centered on the need to shift power relations through sustained organizing in, and by, poor and working class communities. In doing so we learned some important lessons on using evidence, finding leverage, and building power.
Trying to Win an Argument is a Losing Strategy; Evidence Alone is not Leverage
Evidence, facts, and data can be seductive. During the first year of budget advocacy, SJC became embroiled in a war of attrition with the state over the “truth,” where winning the argument over the facts seemed like the goal.
That year we facilitated over 500 submissions from informal settlement residents in response to the City of Cape Town’s (the City’s) proposed budget, the first time mass submissions had been made on a municipal budget in South Africa. This was coupled with a public advocacy campaign that argued that capital allocations for longterm sanitation infrastructure in informal settlements were disproportionately small and unjust. Informal settlements were effectively being treated as permanently temporary. There were no long-term plans for infrastructure in these communities, but rather a consistent use of law enforcement to contain the growth of informal homes. This followed a difficult history of the struggle in South Africa against urban influx control during Apartheid and the rights of black African people to be part of the city.
We thought that the City would change course when faced with such compelling facts of injustice. The pushback, however, was relentless. Cape Town Mayor Patricia de Lille used her budget speech to attack and mock the SJC as an organization driven by nefarious political agendas and self-enrichment. At every turn, the City obstructed, attacked, and undermined.
SJC countered each response, usually through more facts and evidence. By the end of 2015 we understood that we did not have the right leverage and that a fight over the “truth” was not going to take us any further. Trying to win an argument, without finding the leverage to actually challenge power, could never be a winning strategy.
Organizing is Messy and Unpredictable, Identifying Leverage is Crucial
Political organizing does not happen in a vacuum; there are many external pushes and pulls that influence the best way forward. Many planning tools can tempt one into simplistic logical frameworks of easily matching inputs, outputs, and outcomes. Things are not so linear in struggles for power, especially in contexts of deep inequality, spatial segregation, and historical injustice.
But this doesn’t mean that there is only chaos. On the contrary, strategy needs to be constantly interrogated, and we always have to find the best way in. One rarely starts a campaign with a full understanding of every piece of the puzzle. In our case, the budget work during the first year was a wedge that pushed open the process. It helped us to systematically unlock a political and institutional understanding and space into which the campaign could move and build the leverage it needed. Sometimes finding the right leverage can be immediate. Other times it can take months or even years to build and comes through ongoing struggle.
This is where the power of evidence does in fact lie. First it provided the knowledge SJC needed to develop deep budget literacy education within the organization and our branches, allowing us to undertake meaningful mass organizing and uncover a deep injustice. Second, it helped us to better understand the target and was a building block in developing a political strategy to take the campaign forward.
The Campaign Forced the Political Agenda of Poor and Working Class People into Spaces of Power
Mass based campaigns can set a political agenda and disrupt institutions.
First, the City budget was largely uncontested prior to 2015. The SJC campaign pushed the mayor into a position where she had to actively defend the decisions of her administration and be held accountable.
Second, the political agenda of informal settlement residents penetrated formal spaces of power. In a situation where the voices of informal settlement residents are so marginalized and their distance from spaces of power so great, the importance of this cannot be overstated.
In the 2016 budget process, the SJC facilitated 3,000 submissions from informal settlement residents. There were also over 1,000 submissions that came independently from elsewhere in the City, including other poor and working class areas. To put this in perspective, in 2016 there were over 4,000 submissions to a municipal budget that had only 22 public submissions in 2014 — and most of those in 2016 were from ordinary residents, who engaged in an apparently complex public finance process through training provided by the SJC and the IBP. The submissions became the subject of heated political debate within the City Council, disproving the mayor’s frequent assertions that SJC members did not understand the budget and “should be given calculators.”
The Campaign Continues
A provisional review of the impact of the SJC campaign shows that allocations for informal settlement sanitation have started to slowly move upwards after years of stagnation. But at the heart of the campaign was placing the voices of informal settlement residents at the forefront of politics and, however imperfectly, reshaping those politics. This is, at least to me, one of the most important pieces of the story.
Sanitation made many issues around informal settlements tangible — tenure security, land injustice, racial inequality, and the severe barriers people face when trying to take part in the most basic decisions affecting their lives. These problems can seem so big and intractable, but they are deeply urgent. Now the campaign will be looking for the next wedge by which it can move and the layer on which it can build.
Following the 2007 post-election violence in Kenya, the country underwent a reform process that included the development and passage of a new constitution in 2010. The reforms included a major decentralization effort through the creation of a new two-tiered system of government that established 47 counties. Among other goals, the reform aimed to promote democratic and accountable governance, ensure the equitable sharing of national and local resources, and enhance the balance in separation of powers.
IBP’s Kenya team has sought to promote more open, inclusive, and equitable budget processes through multiple and reinforcing efforts at the national level and in several of the new counties. One area of work is to bolster and leverage local budget processes to maintain and enhance resources for service delivery. These efforts are reinforced by analysis, support, and advocacy at the national level to promote the functionality of county budget processes.
At the county level, IBP Kenya and its partners seek to support inclusive engagement in the budget process. Yet outcomes have been mixed, as there has been limited receptivity to CSO engagement by government actors. This has forced IBP’s civil society partners to learn and adapt their approaches, sometimes after investing significant time and effort in a seemingly promising avenue of engagement.
Such is the case with the work of IBP partner Kerio Center in Uasin Gishu to ensure resources in the county budget for persons living with disabilities (PLWD). In 2015 Kerio noted in their review of the budget estimates that there were no funds allocated toward services for PLWD. Separately, PLWD organizations were aware of the issue and took multiple actions to reach out to decision makers in the county executive branch and their members in the County Assembly.
As a result of this advocacy, the County Assembly held a town hall-style meeting to discuss the budget with the Uasin Gishu Disability Forum, an organized group of PLWD. Based on the outcomes of this meeting, the County Assembly allocated KSH 20 million (approximately USD 200,000) for programs and services for this population. This seemed like a great success for civil society, which had identified the gap in the budget, engaged government decision makers about the need for programs and services, and ultimately ensured substantial new resources for this underserved group.
However, after the initial meeting, neither Kerio nor the members of the Disability Forum heard anything further about how the funds were to be allocated. In order to prevent the county from spending these funds without proper consultations with PLWD, the Disability Forum decided to try to find a way to influence the process in the County Assembly. The group reached out to the Assembly through formal procedures, but never heard back.
After reaching out to assembly members through official channels and getting no response, the Disability Forum decided, with the support of Kerio Center, to proactively determine their own priorities for the KSH 20 million and present them to the County Assembly. They prepared and submitted a letter that included a detailed memorandum of the affected population’s proposals for how they wanted the money to be spent. Kerio assisted with the drafting of the proposals and letter, which included a detailed budget and outline of PLWD’s priority programs and activities. They never heard back from the assembly.
Getting no response from the County Executive, County Assembly, or the relevant county departments, the Disability Forum filed a case in the High Court of Kenya. They claimed that “by failing to subject the specific budgetary allocation to public participation and in particular consulting the Applicant/Petitioner there is grave likelihood of an infringement of constitutional rights of the Applicant/Petitioner.” This ongoing court case has yet to be resolved.
This story shows how uncertain progress on issues related to public resource governance can be. At first it appeared that the group of PLWD had won a clear victory when the County Assembly made the KSH 20 million allocation to support for this population. However, after the initial decision, the relevant county government stakeholders were unresponsive to the requests of the Disability Forum for participation in the process for determining how the funds would be spent. This story is still unfolding and there may now be openings emerging around this issue, likely due to the persistence of civil society groups.
This case demonstrates the learning curve for organizations like Kerio Center and Disability Forum. They needed to learn about the entry points for influencing government actions, including the limitations of formal channels of engagement in budget processes. Equally important are the broader lessons Kerio has learned about engaging citizens at the county level. At this level of government, formal CSOs often have limited capacity and credibility, due to their lack of a real constituency. At the same time, broader interest groups (e.g., PLWD, farmers, youths, women, etc.) are also often weakly organized, if at all, or may have partisan connections. Such connections are often necessary to have any influence with decision makers, but can lead to charges of bias as well. IBP and our partners have had to navigate this challenging civil society landscape in our efforts to support democratic and inclusive public engagement in budget processes. Moving forward, Kerio plans to continue to engage at the grassroots level to organize and engage youths and other constituencies on key budget issues, particularly those that directly impact their lives.
Developing this level of engagement by civil society in Kenya’s new counties is challenging and resource intensive. In most cases, the broader public has low levels of education and civic knowledge. Furthermore, most membership- or community-based organizations lack basic capacities for engaging in complicated budget processes. Thus, in order to build a strong grassroots base or presence in a county that would enhance their political legitimacy and increase their influence, CSOs like Kerio need to have long-term strategies that deepen and widen their engagement, and build capacity across diverse kinds of groups in the civil society ecosystem in each county.
This discussion highlights the long road to opening up budgets in a way that allows for real citizen engagement and influence, and ultimately to more inclusive budgets and more effective public services. Formal processes exist, but the incentives and capacities for ensuring that they are open, inclusive, and meaningful are uneven, and indeed, often absent. Furthermore, civil society engagement is a complicated proposition, with formal organizations and constituency groups facing a number of capacity and credibility challenges. IBP and its partners are experimenting with new ways of engaging citizens, focusing on issues and groups with wider public support, and navigating the political dynamics that go along with it. This work to democratize budget processes will take time, but the experience of Kerio and other partners demonstrates that there is no shortcut.