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South Africa: Challenges to Fundamental Rights

Developments Threaten Fragile Democratic Gains

(Johannesburg) – In 2012, South Africa faced one of its most challenging years for protecting human rights since the birth of constitutional democracy in 1994, Human Rights Watch said today in its World Report 2013. Three worrisome developments in particular emerged. The adoption of the Protection of State Information Bill by the National Council of Provinces in 2012, that would most likely be approved by the National Assembly in 2013, threatens freedom of expression and the free exchange of information. The tragic killings at Lonmin Platinum Mine in August 2012 amounted to the failure to uphold and protect security of the person and the right to life. Thirdly, the proposed Traditional Courts bill would be a blow to the right to equality if it is promulgated into law.

“The rights that were compromised by legislation, or violated in practice, during 2012 are cornerstones of the transformative and democratic culture South Africa wants to create,” said Cameron Jacobs, South Africa director at Human Rights Watch. “These rights that are being compromised need to be jealously guarded.”

In its 665-page report, Human Rights Watch assessed progress on human rights during the past year in more than 90 countries, including an analysis of the aftermath of the Arab Spring. The willingness of new governments to respect rights will determine whether the Arab Spring gives birth to genuine democracy or simply spawns authoritarianism in new clothes, Human Rights Watch said.

The August killing of 34 miners at the Lonmin Platinum Mine in Marikana, North West Province, shocked South Africans and elevated the concerns over police brutality and underlying grievances over the government’s failure to fulfill basic economic and social rights. This tragedy shone a spotlight on the poverty and grievances of many in the mining industry. South Africans now await the outcome of the Farlam Judicial Commission of Inquiry, which was appointed to determine whether the use of force was reasonable and justified under the circumstances.

“The police have a duty not just to ensure law and order but to do so within the rule of law,” Jacobs said. “This means that if they use force – particularly lethal force - it must be absolutely necessary and strictly proportionate to the threat of violence.” Human Rights Watch also expressed concern over the controversial Protection of State Information Bill, which aims to regulate the classification, protection, and dissemination of state information, weighing state interests against the importance of freedom of expression. The Bill came in for serious criticism by civil society organizations and state institutions but, after a series of amendments, it was adopted by the National Council of Provinces in November and will most likely be passed by the National Assembly in 2013.  

Some of the amendments, such as the removal of section 49, which would have criminalized disclosure of information relating to any state security matter, did improve the balance in the bill between freedom of expression and state security interests. However, disconcerting aspects remain.

These include uncertainty over how the bill will impact or restrict the Promotion of Access to Information Act (PAIA), which is the enabling legislation to the constitutional right of access to information held by the government and private bodies. Although provisions in early versions of the Protection of State Information Bill that had explicitly given it precedence over the PAIA were deleted, it remains unclear whether the new measure will trump and frustrate the right of access to information enshrined in the PAIA. 

Other government measures in 2012 also threatened to undermine the right to equality. One was the reintroduction of the Traditional Courts Bill, which could effectively restrict access to justice and other rights of vulnerable groups such as women, children, and lesbian, gay, bisexual, and transgender people.

The proposed bill, as it currently stands, gives traditional leaders the authority to enforce controversial aspects of customary law such as the practice of ukutwala (forced marriage), to adjudicate compliance and to enforce sanctions. The right to enforce sanctions is of particular concern, as the bill provides for a range of sanctions including fines, forced labor, and the withdrawal of customary benefits such as the enjoyment of communal land.

The government should amend the bill to make sure that it is in full compliance with international rights standards and protections. These include the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women, to which South Africa is a party.

South Africa’s role as a non-permanent member of the UN Security Council ended in December and its tenure on the Security Council was marked by erratic stances on human rights concerns, particularly with respect to UN engagement on Libya and Syria. South Africa abstained from voting on a draft UN Security Resolution threatening UN action in Syria in July, despite the widespread bloodshed and human rights violations in Syria.

“Given South Africa’s constitution and history, we should take an unequivocal stance on the international scene, when addressing situations of serious and widespread human rights violations,” Jacobs said. “South Africa has come a long way since its first democratic election in 1994, but 2012 has demonstrated how fragile that democracy can be.”

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