Administrative Justice

Empowering Informal Worker Organizations to Use Administrative Law to Defend Their Livelihoods

Photo: Vendor selling vegetables in Durban, South Africa (photo: M. Chen)

Administrative justice is a branch of law that informal workers can—and have—used to secure their livelihoods. WIEGO offers training workshops and helps workers connect with lawyers. Here’s why and how it works.

WHAT IS ADMINISTRATIVE JUSTICE AND HOW DOES IT RELATE TO INFORMAL WORKERS?

All over the world, the working poor rely on access to public space and public resources (such as fishing waters, quarries, forests and waste) to secure their livelihoods. And all over the world, they face challenges that impede their ability to work.

For example, street vendors are unable to access space to trade or critical infrastructure, such as toilets, in many countries. Local authorities often relocate vendors from natural markets, which enjoy considerable foot traffic, to areas that attract relatively little pedestrian traffic. Street vendors are routinely harassed by police and local authorities: they face evictions from their trading sites, and their goods are often confiscated and destroyed, even when they have the necessary licenses or permits to trade.

Waste pickers are often excluded from tendering for waste collection and recycling contracts and are denied space to sort recyclables. They also experience harassment: local authorities confiscate the recyclables that they have collected and deny them access to waste.

Many of these challenges result from decisions made (most often) by local government authorities that control access to public space, and to waste. Known as administrative actions, decisions about allocating trading spaces and issuing licenses, or even the failure to make legally mandated decisions, have far-reaching impacts on informal workers’ livelihoods.

Local government officials typically derive their power to regulate public space from regulations, by-laws, or city ordinances. In some cities, these regulations actively criminalize informal work. In most cities, street vendors’ livelihoods are regulated by health or traffic regulations that regard them as health risks, or as a “nuisance”.

In a hostile legal environment, accessing justice may seem out of reach to informal workers, but legal remedies do exist. Even when regulations undermine their livelihoods, workers can demand a fair process. Administrative justice is the branch of law that requires public institutions and officials (as well as private institutions performing public functions) to adhere to due process principles when making administrative decisions, or taking administrative actions.

Administrative justice principles generally require public authorities to behave in a manner that is:

• Lawful: the official must be authorized to take action and not abuse his/her authority and must work within the confines of the law.
• Reasonable: actions/decisions must be rational and must fit the purpose; and
• Procedurally fair: affected parties must be given reasonable notice, they must be consulted, and decision-making must be impartial.

Administrative justice can therefore be a powerful means of protecting informal workers’ livelihoods.

WHY ADMINISTRATIVE JUSTICE AND NOT CONSTITUTIONAL LAW OR HUMAN RIGHTS LAW?

Experience shows that informal workers can use the principles of administrative justice to contest local authorities’ administrative decisions without assistance from lawyers. The WIEGO Law Programme’s post-training evaluations in  South Africa, Ghana and Senegal suggest that there is a 50 per cent chance that the local authority will reverse its decision if challenged, since the principles of administrative justice are generally clear and are unlikely to be contested by local authorities.

Also, challenging an administrative decision (whether before a court, administrative tribunal, hierarchical superior or Ombud mechanism) is a much faster and cheaper process than ordinary legal proceedings. It is much more straightforward to take an administrative decision on review (where the court or administrative tribunal simply reviews whether the decision met the administrative justice requirements) than challenging the merits of a decision, using constitutional or human rights law.

Internal appeal processes for administrative decisions, and Ombud proceedings (where they exist) are generally speedy and user-friendly.

WIEGO’s ADMINISTRATIVE JUSTICE PROJECT

In 2018, WIEGO’s Law Programme, together with WIEGO’s Organization and Representation Programme, launched the Administrative Law Project. The project aims are:

• To build the legal capacity of workers’ organizations to use administrative law to challenge local authorities’ decisions and actions,
• To build collaboration between informal worker organizations and lawyers,
• To establish a process of dialogue between worker organizations and their local authority about the laws that regulate informal workers’ access to public space.

WIEGO’s approach comprises four pillars:

Pillar 1: Contextual Analysis

In each country/city, we conduct action-and desk-based research to understand the particular priorities and challenges of informal worker organizations, as well as the legal and institutional context. The research focuses on:

(a) Understanding the legal framework by:

• commissioning an administrative justice lawyer to write a legal brief on (a) the laws and cases that regulate street vendors’ and other informal workers’ access to public space, and (b) the administrative justice law in the particular country (both statutory and case law).
• conducting action-research to understand how the law works on the ground.

(b) Understanding the local authority’s structure, budget lines, how the different departments that regulate access to public space (for example the departments of health and sanitation, environmental affairs, and traffic) relate to each other, and the policy goals of the relevant by-laws and/or regulations.

(c) Understanding the workers’ associations (including their structures, maturity, and practices); the main challenges that their members face, and their relationship with the law, with the local authority, and with the trade unions.

(d) Identifying the public interest legal organizations and local champions who could support worker associations and ensure sustainability.

This analysis informs pillars 2 and 3.

Pillar 2: Participatory workshops with informal workers

Using participatory methods, we hold a series of three workshops that aim to build the legal capacity of informal worker organizations to know the regulations that govern their work and to know and use administrative justice to challenge public officials’ actions and decisions that undermine their livelihoods.

• Workshop 1: Workers are introduced to law in general, to the processes by which their organizations can participate in law-making, and to the legal framework that regulates their work.
• Workshop 2: Workers learn about administrative justice, including the available remedies.
• Workshop 3: Workers receive training in collective bargaining and negotiation. The workshop ends with a dialogue between workers and the local authority.

Pillar 3: Securing commitments from lawyers to support informal worker organizations

We build relationships with lawyers to secure their commitment to support informal worker organizations to challenge local authorities’ actions. Activities with lawyers include:

1. Exposure dialogues: Lawyers are invited to live and work alongside informal worker leaders and to engage critically with the legal framework that regulates informal workers livelihoods. Read our blog on the Dakar Law Exposure Dialogue programme. In some cases, lawyers and leaders of informal worker organizations engage in a one-day dialogue.
2. Technical support: We build the lawyers’ understanding of the informal economy and the laws that regulate informal work. For example, in Accra we held a 3-day workshop with 15 lawyers from Legal Aid, which included a legal clinic in the main market.
3. Workshops on community lawyering: We engage legal professionals in a critique of their traditional training, which views clients as passive recipients of expertise, and introduce them to “community lawyering,” which is premised on lawyers partnering with community organizations.

Pillar 4: Engagements between informal worker organizations and local authorities

Public officials often express views that “informal workers don’t pay taxes”; “they are engaged in illegal activity” and “they don’t contribute to the economy”. We undertake a series of engagements with local authorities to debunk these “myths” and biases and to build their knowledge and understanding of the impact that laws and regulations have on workers’ livelihoods.

Typically we engage in the following four activities with local authorities:

1. A technical engagement for us to understand, from the perspective of public officials,  the policy objectives of the different regulations that regulate informal workers’ livelihoods,
2. Dialogues that include site visits or longer “exposure dialogues” to expose officials to workers’ living and working conditions.
3. A capacity-building workshop for local authorities on the principles of administrative justice applicable in the country that includes a review of the regulations to assess whether they conform with the administrative law of the country.
4. Mentoring of local government officials, where possible, through local partners such as Asiye eTafuleni, which is based in eThekwini, South Africa.

HOW INFORMAL WORKERS HAVE USED ADMINISTRATIVE JUSTICE

Since 2018, more than 170 informal worker leaders in four countries have participated in administrative law workshops. Approximately one-third of the informal workers in South Africa, Mexico City and Accra have subsequently challenged local authorities’ decisions and actions. Vendors have challenged confiscations of their goods, negotiated a new by-law, and challenged evictions and relocations from their workplaces. One in two of these instances resulted in the local authority desisting from its intended action or decision or deciding in informal workers’ favour.

In the context of post-training evaluations, workers shared stories of how they used their newly acquired knowledge of administrative justice principles to challenge administrative decisions. Two examples are shared below.

• In February 2018, Rosheda Muller, then President of the South African Informal Traders’ Alliance (SAITA), received a notice from the Cape Town city council stating that traders would have to move from a huge area in front of the City Hall for four days to make way for a film crew. Traders are regularly moved when the council wants to use this area. She wrote a letter to the council, using administrative justice terminology that she had learned and referred to the Promotion of Administrative Justice Act. Council members then met with the traders and reversed their decision — the film crew had to move to another location.

• José Alfredo Hidalgo Lemus, a shoe shiner and a member of the Unión de Aseadores de Calzado in Mexico City, defended a fellow worker who had been evicted by the public authority. He argued that his co-worker was not obstructing the remodeling of the pavement and that “there was no ground to evict him, and there was nothing in writing”. He noted that, given his knowledge of administrative justice principles, the authority seemed to respect him more, and his fellow worker was able to return to his workspace within three days.

They thought that we did not know the law, but they saw that I knew it and they realized that they cannot do what they want... I didn’t know anything about administrative law before the workshop. I did not know whether or not an action was legal. Now I know that administrative actions need to be grounded [in law]. And now I can say it better.

- José Alfredo Hidalgo Lemus, a shoe shiner from Mexico City