Human Rights Developments
South Africa held its second all-race elections in May 1999, with only minor problems reported during the polling. As predicted, the African National Congress (ANC) won a large majority (66.36 percent of the vote), and former deputy president Thabo Mbeki succeeded Nelson Mandela as president and head of state. The ANC chose to maintain the format of a government of national unity, though no longer constitutionally obliged to do so, and leader of the Inkatha Freedom Party (IFP) Mangosuthu Buthelezi and other IFP members were reappointed to cabinet positions. The Democratic Party, however, became the official opposition with 9.55 percent, one percent ahead of the IFP; the "New" National Party, the former party of government, gained only 6.87 percent (compared to 20 percent in 1994).
On December 10, 1998, the fiftieth anniversary of the Universal Declaration of Human Rights, the South African government announced a National Action Plan for the Promotion and Protection of Human Rights, and ratified the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention on the Prevention and Punishment of the Crime of Genocide. South Africa also made declarations under article 41 of the ICCPR recognizing the competence of the Human Rights Committee to consider interstate complaints, and under articles 21 and 22 of the Convention against Torture recognizing the competence of the Committee Against Torture to consider both individual and interstate complaints. In July 1999, Minister of Justice and Constitutional Development Penuell Maduna announced that cabinet had decided to request parliament to approve South Africa's accession to the International Convention on the Suppression and Punishment of the Crime of Apartheid. In October, cabinet also approved the ratification of the ILO Convention on the Prohibition and Elimination of the Worst Forms of Child Labour.
The Truth and Reconciliation Commission completed its hearings of witness testimony about past human rights abuses and presented its report to President Mandela at the end of October 1998. While finding that apartheid was a crime against humanity and that the previous government was responsible for most of the human rights violations during the period 1960 to 1994, the commission also found that the ANC and other liberation movements had committed gross abuses during the armed struggle. Both former president F.W. de Klerk and the ANC challenged the report in court; de Klerk was successful in having a short section naming him as a perpetrator of abuses removed. Several thousand applications for amnesty to the commission remained outstanding, and hearings of amnesty applications were set to continue into 2000, when a supplement to the report would be published. Among notable decisions during the year, the killers of black activist Steven Biko were denied amnesty in February.
The Independent Complaints Directorate (ICD), set up in 1997 to investigate or oversee the investigation of complaints against the police, reported 219 deaths in custody of a total 756 deaths in custody or as a result of police action while in the hands of police from April 1998 to March 1999. In November 1998, the government launched a comprehensive new policy to prevent torture, offering some hope that these figures might fall in the future. Following the Western Cape ICD's March 1999 arrest of a police officer alleged to have committed a serious assault, police in the region obstructed the ICD's work, for example by refusing to appear on identity parades or to make statements. In May, the Gauteng office of the ICD recommended the prosecution of twenty-two policemen filmed assaulting suspected criminals by a BBC documentary crew. In July, new minister for safety and security Steve Tshwete commented that a yet-to-be implemented amendment to the Criminal Procedure Act restricting the right of the police to use deadly force to cases where death or serious injury was threatened might have to be revisited because it would give too much protection to criminals.
South Africa's first national policy on prosecutions was made public in January, intended to guide prosecutors in decision making and provide consistency in handling of criminal offenses. The Prevention of Organised Crime Act, passed in 1998, came into effect in January, creating new offences related to racketeering and providing for the confiscation of the proceeds of unlawful activities. After several attempts to invoke the act to confiscate assets were ruled invalid by the courts, amendments were the government introduced an amending bill to parliament to provide that the law had retroactive effect. In the meantime, assets seized from Piet Meyer, the head of the police organized crime unit in KwaZulu-Natal, who was arrested and charged with various offenses relating to fraud and racketeering, and from Wouter Basson, the apartheid government's chemical warfare expert, had to be returned. On September 1, President Mbeki launched a new anticrime unit, the Directorate of Special Investigations, dubbed the "Scorpions."
Important new legislation restructuring the prison service and bringing prisons law into line with the constitution was passed in late 1998. The act partially came into effect in February 1999, but many sections relating to treatment of prisoners remained unimplemented by October. A Judicial Inspectorate for prisons, provided for by earlier amending legislation and incorporated into the new act, began operations during the year, though the first judge appointed resigned almost immediately. He retained a part-time role, pending the delayed appointment of a replacement, and oversaw the progressive appointment of civilian prison visitors across the country. With the prison population at 146,278 on December 31, 1998, against approved accommodation for 99,294 inmates, prisons remained seriously overcrowded and plagued by prisoner violence. A prison building program led to the award in March of the first contracts to run private prisons, but the budget for the Department of Correctional Services was cut overall. Following a Constitutional Court ruling that prisoners had the right to vote, prisoners participated in the May elections, as they had in 1994. In August, a High Court ruling restored to prisoners awaiting trial various privileges that had been removed in a November 1998 departmental decision, but the department said it would appeal the order.
In November 1998, the Department of Justice launched a training program on violence against women for court staff. The ground-breaking Domestic Violence Act, improving the system of award andenforcement of court orders restraining perpetrators of violence in the home, and the Maintenance Act were both signed into law in December 1998, but neither had been brought into effect by October 1999. The government stated that the delay was caused by the cost of drafting regulations and training personnel to implement the new provisions. The Child Care Amendment Act, passed in March, prohibited the commercial sexual exploitation of children.
Despite fears that the KwaZulu-Natal region would suffer yet another upsurge in political violence during the period leading up to the 1999 election, the vote passed relatively peacefully. In the long-troubled midlands region, nevertheless, serious problems continued. Former ANC leader Sfiso Nkabinde, acquitted in 1998 on charges of sixteen murders, was shot dead in January 1999, and retaliatory killings followed. In August, several people were arrested for Nkabinde's murder, including a bodyguard for the ANC mayor of Richmond, Andrew Ragavaloo. After many years of failures in investigation of violence in the midlands area, the arrests were a success for an investigative unit formed in November 1998 under the deputy director for public prosecutions in KwaZulu-Natal, Chris Macadam.
New refugee legislation became law in December 1998, which addressed many concerns about defects in the existing system for determining asylum applications, while failing to provide asylum seekers with the right to a hearing by those who would adjudicate their case. The act had not yet been brought into force by October 1999. The National Consortium on Refugee Affairs, including both NGOs and the national Human Rights Commission, strongly criticized a plan proposed by the Department of Home Affairs for all asylum seekers to be kept in two remote detention facilities while their applications were decided. More positively, new Minister for Justice and Constitutional Affairs Penuell Maduna stated in June that he identified with the plight of refugees and that South Africa must fulfil its obligations under international law. In February, the Cape High Court ruled that the Aliens Control Act unfairly discriminated against gay and lesbian couples by denying foreign partners of South Africans the right to live and work in South Africa. The case was heard on appeal by the Constitutional Court in August, and judgment was reserved. In March, the government published a white paper which proposed new structures and policies for immigration, while shifting enforcement emphasis "from border control to community and workplace inspection." In March, the national Human Rights Commission published a report, based on research carried out in collaboration with the NGO Lawyers for Human Rights and the University of the Witwatersrand, on conditions in the private detention facility where foreigners await deportation. The report documented widespread corruption in the deportation process and serious allegations of police abuse of deportees. In July, the South African and Mozambican governments announced the creation of a joint working group to monitor conditions of detention and repatriation of Mozambican immigrants in South Africa. Meanwhile, xenophobic attacks on foreigners continued, as did police abuse and police failure to protect them.
In January, the government brought into effect a law, aimed at mercenary outfits such as Executive Outcomes, prohibiting private military training or operations on South African soil. In April, the last South African troops deployed in Lesotho in a botched military intervention by the Southern African Development Community (SADC) in September 1998 were withdrawn. Before leaving office, President Mandela took a farewell tour of several European countries, acknowledging the contribution of the Scandinavian states and the Netherlands to the anti-apartheid struggle. However, he explicitly declined to raise the human rights practices of China during a visit there in May. South Africa played a key role in negotiating the extradition of the Libyan suspects in the Lockerbie bombing, leading to the lifting of U.S. sanctions against Libya, and was prominent in talks to end the war in the Democratic Republic of Congo. South Africa defended its first annual report to the African Commission on Human and Peoples' Rights in April, and hosted a SADC conference on the International Criminal Court in June.
Defending Human Rights
South Africa's vigorous human rights community continued to monitor; occasional government hostility to NGO criticism was counteracted by strong collaboration in government-NGO partnerships elsewhere. The constitutionally guaranteed South African Human Rights Commission (SAHRC) and the Commission on Gender Equality carried out valuable work during the year, as did other statutory monitoring mechanisms, such as the Independent Complaints Directorate. Perhaps the greatest challenge faced by the ICD was substantial public hostility, reflected in some ministerial statements, to measures to protect the rights of alleged criminals from police brutality and arbitary use of lethal force.
The Role of the International Community
The office of the U.N. High Commissioner for Human Rights, under a project in operation since April 1998, offered technical assistance to the SAHRC, the Department of Justice, the police, the Department of Correctional Services, and the army, as well as to Justice College, for training for magistrates and judges, the Centre for Human Rights at the University of Fort Hare, and the Commission on the Restitution of Land Rights. A manager for the project was based at the SAHRC's headquarters in Johannesburg. In addition, the Pretoria office of the U.N. High Commissioner for Refugees gave logistical and other support to the SAHRC's work on xenophobia.
On October 11, an agreement on development and cooperation between the E.U. and South Africa was signed in Pretoria after three-and-a-half years of negotiations. In addition to trade issues, the agreement encouraged support for democracy and the rule of law, respect for human rights, and the promotion of social justice. The E.U. also funded a major technical assistance program on training for labor market skills. The E.U. Foundation for Human Rights in South Africa continued to fund a number of human rights and development projects with money from the European Commission's Programme for Reconstruction and Development in South Africa. The Association of European Parliamentarians for Africa (AWEPA) funded a program launched in November 1998 to regularize the legal status of the estimated 250,000 former Mozambican refugees in South Africa. Individual E.U. members also made bilateral contributions to human rights initiatives. Several European ministers and heads of government traveled to South Africa during the year.
The U.S. Agency for International Development's Program for South Africa focused on six strategic areas, including democracy and governance; funds made available during the 1999 program amounted to approximately U.S.$47 million. The U.S.-S.A. bilateral commission met in South Africa in February, cementing close relations between the Clinton administration and Pretoria. Following the meeting, a new committee focusing on law enforcement was announced, and U.S. training and assistance for the criminal justice system. South Africa participated in the U.S.-Africa ministerial meeting held in Washington D.C. in March. The U.S. assisted in Operation Blue Crane, a peacekeeping training exercise held in South Africa in April by members of the Southern African Development Community.