January 1, 2004
It is almost a decade since the first democratic elections were held in South Africa in April 1994. The principles of dignity, equality, and non-discrimination form the cornerstones of South Africa's constitution. The institutional and policy framework have laid the foundation for the promotion and protection of human rights. However, human rights concerns remain, particularly in relation to the rights of detained and accused persons; excessive use of force by police; the rights of non-citizens; violence against women; and HIV/AIDS. The realization of social and economic rights has become a pressing human rights issue in South Africa's nascent constitutional democracy. Although many human rights problems can be partly attributed to the legacy of apartheid, the democratic government is responsible for implementing new policies to combat ongoing abuses.
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- Police
- Prisons
- Children in detention
- Rights of Non-Citizens
- Violence against Women
- Social and Economic Rights
- South Africa's Regional Role
Police
Although the government has introduced significant reforms, inappropriate and excessive use of force by police remains a serious concern. In 2002/03, the Independent Complaints Directorate (ICD), a statutory oversight body, received reports of 217 deaths in police custody and an additional 311 deaths resulting from police action, such as during arrests. While it is encouraging that the reporting mechanism is in place, the high number of deaths, particularly in police custody, is worrying. The police have prevented the ICD from initiating inspections at police holding cells absent a complaint. Police have also on occasion used excessive force against peaceful demonstrators. The ICD is investigating a case where police used water cannons and rubber bullets to disperse protesters at the University of the Witwatersrand College of Education when Israeli Foreign Minister Shimon Peres was giving a lecture on September 2, 2002.
Prisons
Overcrowding in South Africa's prisons continues to be a problem. As of February 28, 2003, 188,307 prisoners were being held in facilities that should accommodate 110,924. Overcrowding continues to threaten the health and living conditions of prisoners and impedes rehabilitation efforts. Sexual assaults and gang violence are a further threat to the safety of prisoners. To ease overcrowding, the Inspecting Judge of Prisonsæan independent oversight bodyæhas recommended the early release of prisoners who are too poor to afford bail. As of March 24, 2003, 19,592 accused personsæabout a third of the pre-trial populationæcould not afford bail, in some cases as little as 50 rands (U.S.$8), and had been held for an average of 143 days. Sections of the 1998 Correctional Services Act protecting prisoners' rights are not yet in force.
Children in detention
Despite international law requirements that child offenders not be detained except as a last resort, the number of juveniles in detention facilitiesæmostly jailsæawaiting trial continues to increase. Currently more than 2,000 child offenders, as compared to around 500 in 1995, are in detention awaiting trial. While in some cases juveniles are held separately from adults, this is not always the case in jails. A Child Justice Bill, deliberated in the South African Parliament during 2003, proposes a restorative justice approach in an attempt to move children out of the criminal justice system.
Rights of Non-Citizens
Since 1994, South Africa has seen a large increase in the number of undocumented migrants and asylum seekers from the rest of Africa—though the overall figures are contested. Although the 1998 Refugee Act provides a legal system for asylum seekers and refugees that is mostly in line with international standards, significant problems remain in its administration. The 2002 Immigration Act, which came into force in 2003, is widely agreed to be in violation of human rights, particularly with respect to the arrest and detention of foreign nationals. South Africa continues to deport around 5,000 people per month mostly to Mozambique and Zimbabwe. .In November 2003, ten children between the ages of ten and seventeen were detained sharing living quarters with adults at a privately run detention facility.
Violence against Women
Violence against women and children is widely recognized as a serious problem in South Africa: 52, 425 rapes and attempted rapes were reported to the South African police between April 2002 and March 2003. The South African government has taken important legislative steps to try to combat violence against women, including introducing a new Sexual Offences Bill to parliament in 2003, which will remove anomalies from the existing law. Police have received training in handling rape cases, and special courts are being established, yet conviction rates remain low. Less than 5 percent of perpetrators of rape against adult women are convicted; the conviction rate in cases of rape of children is approximately 9 percent. In a country where one quarter of adults are HIV-positive, rape can mean a death sentence.
Social and Economic Rights
South Africa's vast economic disparities continue to generate human rights abuses. It is estimated that twenty-two million people—roughly half the population, the great majority of them blacks—live in abject poverty. About a fifth of the South African population receives government financial assistance.
People living in rural areas have particular difficulty in accessing their right to health care services, education, and social services. Although access to public schooling for children is widely available and enrollment has increased since 1994, there are wide disparities in schools' resources: about 40 percent of state-run schools—mostly those in rural areas—have no electricity, and approximately 30 percent no clean water. Physical access to education in rural areas is of particular concern. Some learners have to walk up to thirty kilometers each day getting to and from school, exposing children to dangers such as sexual violence as well as contributing to high drop-out rates.
Over five million of South Africa's 45 million people are estimated to be living with HIV, one of the highest national totals in the world. The pandemic poses some of the greatest human rights challenges to the government. The government's response to the pandemic has been wrongheaded and inadequate. Access to life-prolonging antiretroviral medication for people living with HIV and post-exposure HIV prevention services for sexually assaulted persons have been severely restricted. The government's decision in November 2003 to approve a plan for treatment and care for HIV and AIDS, which includes the provision of antiretrovirals at state-run hospitals is long overdue. The provision of affordable medication, necessary information, adequate nutrition, and support services—particularly for women and children who are most affected—is essential.
South Africa's Regional Role
South Africa has been instrumental in the establishment of the African Union (A.U.) and the New Partnership for Africa's Development (NEPAD), a program of the A.U. In the promotion of human rights, democracy and peace, South Africa has supported the coming into force of the A.U. protocols establishing the Peace and Security Council, the Pan-African Parliament, the African Court on Human and Peoples' Rights, and the Court of Justice. South Africa has increased its role in seeking peaceful solutions to conflict in Africa by providing military personnel in peace support operations and brokering a peace settlement in the war-ravaged countries of Democratic Republic of Congo and Burundi. However, South Africa has been notably silent with respect to human rights conditions in Swaziland and Zimbabwe.