Citizens often feel powerless in the face of government incompetence or indifference. Many feel that short of voting in a new government – that may turn out to be equally inept – there is little that they can to do effect change. However, a civil society organization in Argentina has demonstrated that a litigation-based strategy driven by budget monitoring can be used to enforce socio-economic rights when governments fail to meet their obligations.
The Civil Association for Equality and Justice (Asociacion Civil por la Igualdad y la Justicia, or ACIJ) examined the budget for evidence to hold the government of the city of Buenos Aires accountable for its failure to provide all of the city’s children with the constitutionally-guaranteed right to early education.
“While the work of other CSOs in the field of education had been devoted to doing research and putting forward policy proposals, ACIJ took a leading role in advancing the right to education through strategic litigation, as well as in using budget analysis findings to advance litigation strategies,” Fernando Basch writes in a recent case study of ACIJ’s class action.
Since 2002, almost 8000 children in Buenos Aires have been denied the right to early education because of a shortage in the number of school vacancies. When communicating with the government about this shortage proved futile, ACIJ, made up mostly of attorneys, decided to turn to litigation.
Budget monitoring to ensure early education
Using the Freedom of Information Act, ACIJ was able to access data on government budgets and spending. The success of ACIJ’s strategy hinged on what it would find in this data. By using budget analysis, ACIJ was able to prove that, despite a shortage in the number of vacancies available for early education, the government had, for five years, underspent a significant proportion of the budget allocated to the development and maintenance of early education facilities.
The fact that the budget allocations existed showed that a political decision to increase the capacity of early education facilities had already been made and that the government should – and could – be held accountable for its failure to do so. The underspending indicated that the government’s failure to meet its obligations was not as a result of insufficient funds, but rather as a result of inefficiency or ineptitude.
A successful legal campaign
In a protracted legal battle which saw the case move all the way to the High Court, ACIJ asked the courts to order the government to meet its constitutional obligation. The government appealed two court rulings in favor of ACIJ on the grounds that the court was overstepping its mandate by interfering in a political process. However, because ACIJ could show that the government had underspent on funds already allocated to education, the court could maintain that it was not telling the government what to do, but simply that it had to do what it had already committed to doing.
Because of the pressure brought by the case – and the resultant public and media attention – the government eventually reached an agreement with ACIJ in which it committed to ensuring that the right to early education would be met. The court, which retained jurisdiction, will be in a position to make sure that the government keeps this commitment.
A commitment by government and an example to others
“Budget analysis revealed itself to be a greatly useful tool for social rights litigation,” writes Basch. “When it is used well, it can provide arguments for courts that are willing to enforce the law but are reluctant to intervene in public policy debates.”
In this particular case, budget analysis enabled ACIJ to secure two court judgments against the government of the city of Buenos Aires for its failure to guarantee access to early education; to persuade the city’s highest court to hold a high-profile public hearing on the matter; and to get a legally-binding agreement from the government in which it committed to rectifying the situation.
Although it is yet to be seen whether or not the government will successfully implement the agreement, ACIJ has, at the very least, set an extraordinary precedent for citizen monitoring of service delivery and social rights litigation. ACIJ is one of the few organizations in Argentina to have used budget analysis as a litigation strategy and, in doing so and by demonstrating its usefulness, it may have encouraged other activists to follow suit.
More important, however, than the precedent, is the fact that ACIJ has materially changed the lives of thousands of children who would otherwise have been excluded from early education and, consequently, the same opportunities as their peers.
Click here to watch ACIJ’s film on early education in Buenos Aires
This post was written by Rebekah Kendal based on the case study by Fernando Basch commissioned by the International Budget Partnership. Click here to read more case studies of how citizen budget monitoring has improved service delivery.