The provision of social services is inherently a government responsibility, critical for ensuring the well-being and quality of life for all citizens.
Globally, the provision of public services by private actors has increasingly become popular as an apt response to budget deficits, and debt crises.
To its supporters, it presents a viable means to reduce fiscal pressure, increase efficiency, and improve cash flow by reducing subsidies to state-owned enterprises. There is a growing concern about private actors’ involvement in social service provision.
Their commercial interests are transforming social services into private commodities and steadily, this pursuit of macro-economic policies by governments has led to neglect and failure of policymakers to comply with their obligation to build and maintain a strong, public social service infrastructure.
Sectors like healthcare, education, and public transport offer essential public services where profit should not be the primary focus. Instead, the utmost priority must be that of meeting the public needs of all.
Private actors’ increasing involvement in delivering essential public services, including healthcare, education, water, and electricity, has emerged as a significant concern in Africa, impacting both business and human rights.
The insufficient state of public social services in the region has resulted in a growing dependence on private entities to provide these essential services. However, this trend has raised apprehensions regarding accessibility, affordability, and quality of social services, particularly for the poor.
This trend of increased involvement of private actors in the provision of social services undermines the very object and purpose of these services. The private provision of public services creates a dilemma as it brings about a conflict between efficiency and equity in delivering essential public social services.
For instance, the stark contrasts between public and private social service providers were brought to the fore during the Covid-19 pandemic. Across the continent, marginalized and other disadvantaged groups suffered disproportionate effects of price hikes on essential items such as face masks and medicines.
More significantly, the pandemic highlighted that many commercial actors pursued profit–seeking strategies that made social services more inaccessible to many.
Following these developments and growing concerns about the serious impacts of private actors’ involvement in the provision of public services, crucial normative developments have occurred at the international level. To wit, during the 72nd ordinary session of the African Commission on Human and People’s Rights, General Comment No.7 on State Obligations under the African Charter on Human and People’s Rights in the Context of private provision of social services was adopted.
It explains the obligations of states in the context of the private provision of human rights and underscores the issue of regulation as being central to the government’s obligation to protect human rights. In the African regional human rights system, the government’s obligation to ensure the provision of social services has a long history tracing its roots to Article 13(3) of the African Charter.
Chiefly, public services obligations require, among others, that when private actors decide to provide social services, they agree to forgo their private (often profit-driven) interests and take on public interest as their primary objective. Social services have a strong redistributive potential, which can promote economic mobility, reduce inequalities, and assist states to realize the rights to equality and non-discrimination.
These ideals can only be equitably realized by centering public interest in the provision of these services. Thus, the unregulated expansion of private actors poses risks to fulfilling human rights obligations, exacerbating inequality and exclusion.
To address these challenges, it is vital to explore legal frameworks and policy options that effectively regulate the delivery of public services by private actors. Striking a balance between private sector participation in the provision of public services and the protection of human rights is crucial to ensure that the provision of public services serves the best interests of all citizens.
Therefore, whenever private actors participate in social service provision, they perform a core public function that demands a high level of protection of collective interest.
As such, the government must ensure effective regulation of the provision of public services by private actors through an interplay of laws and regulations to ensure citizens can access quality social services. General comment No. 7 offers a good starting point for addressing this emergent issue.
The author is Coordinator, Uganda Consortium on Corporate Accountability (UCCA)