4. Human Rights Impact of Private Actors in social services

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GI-ESCR works to deepen the research on the impact of the increasing role of private actors on social services, particularly in education and health, to highlight the obligation of States to respect, protect and fulfil ESC rights, and to offer a thoughtful response to privatisation and its impact on the enjoyment of ESC rights in practice. By strengthening the connections between theory and practice, national and international advocacy, in collaboration and partnerships with a broad range of actors, GI-ESCR advances education and health as a human right in the context of expanding private actor involvement in social services.

Finalising human rights guiding principles on States’ obligations regarding private actors in education

GI-ESCR continued work on compiling and clarifying the human rights standards on private involvement in education, as part of the Secretariat facilitating the development process for the human rights guiding principles on States’ obligations regarding private actors in education (the Guiding Principles).

The three-year participatory consultation phase of the Guiding Principles was completed in 2018. In February a thematic consultation was held in Geneva, in collaboration with the Missions of Finland, France and Portugal, NORRAG and the Geneva Academy of International Humanitarian Law and Human Rights. The introductory section of the consultation was livestreamed for broader viewing and is available on the NORRAG YouTube page

Community consultations were organised in India, Kenya, Nepal and The Philippines by partner organisations with support from the Secretariat.

Finally, a global online consultation was launched to reach a wide audience, who may not have otherwise been able to be participate in the consultation process. These additional events allowed the Secretariat to collect more information on nuanced areas of the Guiding Principles and engage new audiences to raise awareness about the Guiding Principles, particularly through online promotions and community-level consultations. 

The Drafting Committee for the Guiding Principles was constituted in June 2018 and held the first in-person meeting in Geneva, Switzerland. Chaired by Professor Ann Skelton, UNESCO Chair in education law in Africa, and comprising of 9 individuals, this group led the drafting process, building on the input from the consultations. Subsequent in-person meetings were held in September and October to review and discuss the structure and comments on the Guiding Principles, in coordination with other experts.

A consultant, Zsuzsanna Nyitray, was hired to work with the Drafting Committee and other global experts to develop a commentary to complement the Guiding Principles. Ms. Nyitray participated in discussions with the Drafting Committee and reviewed source materials to ensure the Guiding Principles were underpinned by firm legal provisions. Once published, the commentary will add to the collection of background papers commissioned to look at various themes addressed by the Guiding Principles. These documents are expected to be finalised and launched in 2019.

The Ministry of Education in Côte d’Ivoire agreed to host the Adoption Conference for the Guiding Principles in Abidjan, Cote d’Ivoire. Launching the Guiding Principles outside North America or Europe, in a Francophone country, is in-line with the overall approach to the development process of ensuring broad investment in and ownership of the principles. The adoption conference will take place in February 2019.

Monitoring concerning developments of commercial low-cost private schools

GI-ESCR has continued to actively research and monitor global development and impact of commercial low-cost private school chains on the provision of education. A key focus in 2018 continued to be the operations and actions of Bridge International Academies (BIA).

Following the decision of the Government of Uganda to close BIA schools in the country, GI-ESCR joined other civil society organizations called on the company to comply with the Government decision and stop undermining the right to education. This call came after a letter on 29 January 2018 from the Government of Uganda warning the company that its schools would not be allowed to operate in the 2018 academic year.

BIA filed a case before the Ugandan High Court challenging this directive, but in a ruling delivered in March 2018, the High Court dismissed the application, observing that the schools were indeed operating illegally.

In Kenya, the High Court of Kenya dismissed an application for an interim injunction against the Kenya National Union of Teachers (KNUT) and its Secretary General Mr Wilson Sossion, which had temporarily barred them from publicly discussing the operations of BIA, pending a hearing and final determination on a suit. This ruling was an important step to correct the attempt by the company to silence critics in the country.

Following repeated efforts to highlight concerns about  the impact of BIA’s activities, the Kenyan-based organisation East African Centre for Human Rights (EACHRights) and eight Kenyan citizens submitted a complaint to the Compliance Advisor Ombudsman, the independent complaint mechanism of the  International Finance Corporation (IFC) in April, with the support of GI-ESCR and RESULTS Educational Fund. See below section for further details on the CAO complaint.

Additionally, a call to BIA investors was issued by GI-ESCR and 88 civil society organisations in March,  to cease their support to the company, including investments via intermediaries, and to fully discharge their legal due diligence obligations and responsibilities by making no further financing commitments to BIA. A follow-up blog post was issued in response to BIA’s reaction. 

Further to actively monitoring developments, GI-ESCR has also worked with partner organisations to map the various accountability mechanisms, at the international and national levels, available to hold both public and private actors to account for their support for ongoing violations of the right to education. These options will be further explored in 2019.

·         Complaint to the Compliance Advisor Ombudsman (CAO) of the International Finance Corporation (IFC)

GI-ESCR worked with RESULTS Educational Fund to support EACHRights to develop and submit a complaint to the Compliance Advisor Ombudsman (CAO), the independent accountability mechanism of the International Finance Corporation (IFC). The complaint highlights the various documented violations committed by Bridge International Academies and calls on the CAO to carry out a compliance review of the company, and recommend that the IFC withdraw its investment and implement mechanisms to ensure that no further support is granted to companies that violate national laws and human rights. 

The complaint was found to be admissible in June 2018, and the CAO conducted field visits in September to investigate the claims brought forth in the complaint. In December, the CAO shared their assessment report for a final review by all parties, before publishing it on their website. GI-ESCR, RESULTS provided EACHRights with comments for feedback. These were sent to the CAO. The final report should be publicly available on the CAO website in early 2019.

Advocacy with international institutions

GI-ESCR has strategically leveraged several global institutions and United Nations mechanisms to ensure the human rights normative framework addresses the issue of low-fee private schools’ impact on the provision of education.

·         European Parliament

A crucial precedent was set with a breakthrough resolution by the European Parliament which declared that the European Commission must not use development aid money to fund commercial private schools. The resolution was adopted in November, by over 90% of the votes. It considers that it is a requirement under human rights law and a necessity for the achievement of the Sustainable Development Goals that the European Union refrain from funding commercial private schools. GI-ESCR, in a coalition of organisations, advocated for the European Parliament to recognise that the fast-pace growth of private actors in education in developing countries could undermine the progress in building non-discriminatory, free public education systems.

·         World Bank

GI-ESCR, with partners RESULTS, Global Partnership for Education and Oxfam, attended a series of meetings with World Bank Executive Directors during the Spring Meetings in April to present the complaint submitted to the CAO, as well as updated information on correspondence with other investors and BIA.

For the World Bank annual meeting in October, GI-ESCR contributed a case study on the Liberian education public-private partnership (PPP) programme for a new Eurodad report on PPPs. The report highlighted the dangers of using PPPs for public service provision, including education and health. GI-ESCR supported the collective advocacy and communications for the report launch.

·         UN Human Rights Council resolution on right to education

GI-ESCR participated in the negotiations on the right to education resolution, during the 38th session of the Human Rights Council held in June. The resulting resolution contains strong language on the regulation of private education providers, to address the negative impacts of the commercialisation of education.

The resolution, was adopted without the need for a vote, highlighting the increased consensus among States regarding the human rights requirement to regulate education providers and to address the negative impacts of commercialisation in education. It also welcomed the development of the Guiding Principles as part of the steps to implement the right to education. This reflects the support from States for processes such as ongoing efforts to develop Guiding Principles.

·         African Commission on Human and Peoples’ Rights (ACHPR)

Following an open call by the ACHPR, GI-ESCR made a submission on the draft guidelines on the right to water in Africa. The submission focused on the provision in the draft guidelines addressing the delegation of water service to private actors and drew largely from the Human Rights Guiding Principles on the role of States with respect to private actors.

GI-ESCR worked with ISER and the Dullah Omar Institute to prepare for a side event on privatisation of social services, especially education and health, at the ACHPR session in October, and worked with these partners and in partnership with the Commissioner head of the Economic, Social and Cultural Rights working group, on the adoption of a resolution on private actors and social services.

·         Examination of Mauritania by the UN Committee on the Rights of the Child

GI-ESCR, the Association of Women Head of Families (AFCF), and  the coalition of Mauritanian organisations for education (COMEDUC) submitted a report to the Committee on the Rights of the Child on the privatisation of education in Mauritania and the selling of public school lands, following a one-year research project.

The report and the issues it tackles were presented to the Committee during the pre-session and Mauritania’s final examination at the Committee on the Rights of the Child, by a representatives from AFCF and GI-ESCR.

The final recommendations on Mauritania by the CRC, expressed deep concern regarding privatisation of education in Mauritania and the closure of public schools in the capital, and noted all key issues raised in the report submitted by GI-ESCR and partners.

Global mobilisation on private actors in education

An integral approach in GI-ESCR’s work on private actors and social services is to connect, network and collaborate with different partners operating across geographies to be able to address global issues. Throughout the year, GI-ESCR participated in various conferences and networks to ensure a human rights framework in strategic discussions on private actors’ involvement in education.

·         Global Partnership for Education

GI-ESCR participated in the Global Partnership for Education replenishment conference in Dakar, Senegal in February 2018. At the conference, GI-ESCR co-organised a panel session on “Accountable financing: what does supporting education as an accountable human right involve?” The session explored accountability in the realisation of the right to education, from the perspectives of civil society, UN experts, States/inter-state agency. The focus was on the importance and meaning of accountability for the right to education, and practical tools that States and the GPE could use to concretely participate to improve public education systems and collaborative work.

A concerning development over the year has been the private sector strategy of the GPE. GI-ESCR has actively participated in the discussion and attended the GPE Board meeting in Brussels as observers to advocate for a human rights approach to be incorporated in the strategy, in accordance with the human rights Guiding Principles on State obligations regarding private actors involved in education.

GI-ESCR also held a knowledge share presentation at the Global Partnership for Education in Washington, DC in April. The presentation went over the Guiding Principles on Private actors in Education. Key members of management were in attendance for the presentation. 

·         ESCR-Net Economic Policy Working Group

Working collaboratively at the global level, GI-ESCR participated in the ESCR-Net Economic Policy Working Group met in Tunis, Tunisia. The focus was to deepen a shared analysis of the global economic system and related development model, to popularise human-rights based responses and develop advocacy positions on systemic injustices, to refine collective plans to articulate and promote alternative(s), and to establish plans in relation to concrete openings for advocacy and campaigning.

·         CIES Conference

At the Annual Conference of the Comparative and International Education (CIES) in Mexico City, 25-29 March, GI-ESCR held a pre-conference workshop “Privatisation has failed: How can public education systems be fixed?” exploring concepts and models of accountability and transparency in education, and two conference panel sessions. The first panel, “Privatisation in Education in Francophone countries: a separate case?”, looked at privatisation of education in the Francophone area, with the presentation of the particular cases of  Mauritania and Haiti, as well as the role of international donors and the presentation of the Francophone network against commercialisation of education. The second panel, “Are Public-Private Partnerships in Education Acceptable from a Human Rights Perspective?” facilitated a discussion on public-private partnerships, which opened a space to also discuss the Guiding Principles.  An exhibition table showcasing GI-ESCR’s work on privatisation and social services was available throughout the conference.

·         Regional Education Learning Initiative (RELI)

GI-ESCR, in partnership with EACHRights, ISER and the Stanford Center for Opportunity Policy in Education (SCOPE) hosted a Special Interest Group at the annual Regional Education and Learning Initiative (RELI) Regional Convening in Dar es Salaam held in June 2018. The event highlighted the challenges with private actors in education, State obligations and alternatives and solutions including the Guiding Principles and social accountability. 

GI-ESCR is also part of the Equity and Inclusion thematic group which carried forward the work on exploring effective models for social accountability in education.

Privatisation of health and other social services

GI-ESCR continues to expand the work on privatisation of health, unpacking the human rights framework applicable to the involvement of private actors in health, building from the experience in education. GI-ESCR partnered with ISER-Uganda, Oxfam Great Britain (Oxfam GB) and the University of Essex Human Rights Centre Clinic to develop an in-depth understanding of the human rights framework applicable to the involvement of private actors in health care, including State obligations where private actors are involved in the health system. This paper is due to be published in 2019.

GI-ESCR in collaboration with ISER and with support from Oxfam GB developed a research tool that could be used in researching or analysing the impact of private actor involvement in health systems and on the right to health. ISER piloted this research tool in their investigation on the human rights impact of public private partnerships in health will be published in 2019.  

For the Fifth Global Symposium on Health Systems Research in October, GI-ESCR in collaboration with Essex Human Rights Clinic, Oxfam and ISER submitted an abstract on “The role and limitation of private actors in the realisation of SDG 3 and the right to health”. The abstract was accepted as a poster presentation, which focused on how to measure the impact of private actors on the right to health.

GI-ESCR also attended the first East African Governance for health convening, that was organised by Open Society in East Africa and the Open Society Foundation Public Health Program. Building on this and the experience in education, GI-ESCR is working with a few partners to develop basic conceptual tools to address the role of private actors in health from a human rights angle.

GI-ESCR also published the first version of the synthesis of human rights bodies’ statements on private actors in health systems.

GI-ESCR participated in a panel discussion on private actors and the right to health during the 5th Annual Conference on ESCRs held in Kampala, Uganda to exchange experiences working on private actors in health systems internationally, and to discuss the implications for health governance in Uganda.

Private actors in education in Francophone countries

GI-ESCR and its Mauritanian partners were able to produce the first research ever on privatisation of education in Mauritania. A joint report on Mauritania was submitted to the Committee on the Rights of the Child (CRC). The final report was launched in December. It calls for supporting the denunciation of the closure of public schools in the capital Nouakchottand calls on the Mauritanian government to uphold the right to education. The CRC issued the Concluding Observations which included language reflecting the recommendations presented in the joint report. The report is available in French, English and Arabic. A video was also created to promote the launch of the report. It is also in multiple languages on the GI-ESCR Youtube Channel.

GI-ESCR worked in coordination with OSIWA at planning its exploratory mission in Western Africa, with the objective of finding new partners in the region, to further the understanding of the situation of privatisation and commercialisation of education in the region and identify opportunities for projects to tackle these issues.

During the 17th Francophonie Summit of 2018, 57 member States of the Francophonie reaffirmed their commitment to quality public education and effective regulation of education, including private, thus responding to the call of the Francophone Network against commercialisation of education.

GI-ESCR and the six other members of the Francophone Network Consortium Steering Committee were able through the work with COSYDEP, and a Southern based intern Francophone Network coordinator, put in place the foundation for transferring part of the lead in the work in the Francophone area to the South, and to asses necessary steps in moving forward with this work.