Please accept my regards on behalf of Human Rights Watch, an independent, nongovernmental organization that monitors human rights developments in more than 100 countries around the world. We have reported on human rights concerns in South Africa for more than twenty years.
We write to your new administration to raise important human rights concerns in South Africa. We hope that you will prioritize addressing these rights issues and work to restore your country’s leadership role on human rights by pursuing a consistent, human rights-based foreign policy both regionally and globally.
We are encouraged by your stated commitment to advancing democracy, justice, human rights, and good governance and the promise of a “new dawn” inspired by the collective memory of Nelson Mandela. With your new mandate following elections in May, we urge you to take strong, bold, and concrete steps in the coming months to advance respect for human rights across South Africa, and to restore South Africa’s image as a global leader and beacon for human rights in Africa.
We hope that your administration will act on and prioritize the following human rights issues, which Human Rights Watch documented in South Africa in recent years:
- Work to end xenophobic attacks and discrimination against foreign nationals, including by holding those responsible for violent attacks to account in fair, credible trials and by sanctioning public officials who use inciteful rhetoric against foreign nationals;
- Work to end violence against women, including by improving mechanisms for women to report violence without fear of retribution and by enhancing the capacity and quality of investigations and prosecutions;
- Ensure access to free and inclusive education for children with disabilities;
- Improve protections for environmental rights activists and ensure the rights of communities affected by mining projects are respected;
- Demonstrate leadership across Africa and globally in safeguarding human rights and justice, including through your engagement at the United Nations Security Council, the Human Rights Council, the African Union, the Southern African Development Community, and other regional and international bodies.
Please find further details on each of these issues in the Annex below. We hope that these recommendations will help guide your actions in the coming months as you work to fulfill your commitment to improve the lives of everyone in South Africa and to achieve a better Africa and world.
Human Rights Watch looks forward to continued, constructive dialogue with your administration and to the prospect of important advances in human rights.
Please accept, Mr. President, the expression of my highest consideration.
- End Xenophobic Violence, Rhetoric, and Ensure Accountability
Xenophobic rhetoric and violence against foreign nationals, including refugees and asylum seekers, remains an urgent and growing concern across much of South Africa. We welcomed the launch of the government’s five-year National Action Plan to combat xenophobia, racism, and discrimination on March 25, 2019. Yet the xenophobic violence that erupted that very same day in the eastern eThekwini municipality, one of South Africa’s most heavily populated areas, highlighted the desperate need for strong moral leadership and decisive action. All too often, the sometimes hateful and inciteful rhetoric of political leaders and local officials encourages South African residents to discriminate against, and sometimes carry out acts of violence against, foreign nationals.
Virtually no one has been brought to justice for past outbreaks of xenophobic violence, including the attacks on foreigners in 2008 that resulted in the deaths of more than 60 people across the country, the violence in Durban in April 2015 that led to the displacement of thousands of foreign nationals, or the violence against foreign truck drivers and other foreign nationals since March last year that has resulted in the deaths of at least 200 people.
This month, sporadic violence targeting African foreign nationals and their businesses broke out in parts of Durban, Pretoria, Johannesburg and surrounding areas of Germiston, Thokoza, Katlehong, Alberton, Alexandra, and Malvern. The attacks left 12 people killed, thousands displaced, and businesses wantonly looted. More than 600 people were arrested on various charges related to public violence and looting, malicious damage to property, and grievous bodily harm. On September 3, 2019, you rightly posted a video message on Twitter in which you condemned the violence in the strongest terms.
People from across the continent travel to South Africa because they see your country as a beacon of democracy, freedom, and human rights. Many had fled persecution at home because of their political affiliation, ethnicity, or beliefs. Others are fleeing violent conflicts or escaping extreme poverty.
We recognize that the challenges around ensuring that all South Africans have access to adequate food, education, healthcare, and employment opportunities can be daunting. But the answer is not to trample on the rights of foreigners who came to South Africa seeking a better future.
The South African government should publicly set out specific, concrete steps it is going to take to guarantee the safety and protect the human rights and freedoms of non-nationals living in South Africa, including migrants, refugees, and asylum seekers. A comprehensive strategy should include efforts to bring to justice those responsible for inciting or carrying out violent xenophobic attacks. This will be essential for deterring future violence and showing that the consequences for such actions are real. The government should increase the deployment of police officers with relevant specialized training in xenophobic crimes to improve the success rates in effectively and fairly investigating and prosecuting such crimes. This should be part of broader efforts to improve training and professionalization throughout the criminal justice system.
- A Crisis Affecting Children with Disabilities
As you noted during your State of the Nation Address (SONA), it is a matter of great concern that around half a million school- aged children with disabilities in South Africa are not in school. We agree. Children with disabilities are discriminated against and excluded from many South African schools, impacting their opportunities to learn, grow independently and seek employment opportunities.
But even those who are in school are not guaranteed their right to an inclusive, quality education. Children with disabilities who are in school are most often enrolled in a parallel “special” education system for people with disabilities and those deemed to have learning barriers, preventing them from learning in an inclusive general school system. These special schools segregate children with disabilities from other students, and are often located far from their communities. Many special schools don’t guarantee quality: they limit many children’s holistic development, cognitive skills growth, and future employment opportunities.
Children with psychosocial disabilities, as well as those with profound intellectual disabilities, are often placed in child centers or less regulated special service centers. These centers lack properly trained staff and often result in long-term institutionalization.
Providing support for children with disabilities in mainstream schools would ensure that they have equal access to a full cycle of basic education, to which they are entitled by law.
School fees are another important barrier for children with disabilities. While South Africa’s laws do not automatically guarantee the right to free education, most children who attend public schools do not pay school fees. Yet most children with disabilities in public special schools are charged fees. And many children with disabilities attending mainstream schools are charged additional fees that children without disabilities do not have to pay. Parents of children with disabilities have repeatedly called on your government to ensure that children with disabilities will be treated equally, starting with access to free education.
To address these challenges, we urge you to take strong, decisive measures to allocate resources and guarantee the political will to strengthen all mainstream schools so that they can guarantee good quality and inclusive education for all learners, including learners with disabilities. The government should ensure that they can enroll and get the support they need to learn in mainstream schools and end the default referral of many children with disabilities to special schools. The national budget should include funding to support inclusive education throughout its system. We also urge you to enact legislation that would give full effect to the right to inclusive education for all children with disabilities, as recommended in 2018 by the UN Committee on the Rights of Persons with Disabilities.
While building a strong inclusive education system, South Africa should urgently address discriminatory practices and ensure that public special schools qualify as “no-fee” schools.
- Work to End Violence Against Women
As you are aware, South Africa has one of the highest rates of gender-based violence and femicide in the world – the femicide rate is almost five times the global average, according to the World Health Organization. South Africa Justice Minister Ronald Lamola Lamola recently said that in the period between August 2018 and August 2019, 4,716 sexual offense convictions were recorded (a 74.4% conviction rate).
Nationwide protests took place this month following the killings of multiple women across South Africa and increased instances of gender-based violence. The violence spurred an #AmINext movement where women on social media called out their alleged abusers. Protesters called for a national emergency and expressed anger over the government’s failure to better protect women. According to Women’s Minister, Maite Nkoana-Mashabane, more than 30 women were killed by their spouses in August 2019 alone.
In response to the protests, the African National Congress (ANC) vowed to amend the Sexual Offences Act and Domestic Violence Act in order to ensure harsher punishments for offenders as well as other reforms.
Human Rights Watch welcomes your call, during your State of the Nation Address (SONA), for political and community leadership to support and champion the cause of eradicating gender-based violence and femicide. We also welcome some initial steps that have been taken, including the establishment of 92 dedicated sexual offenses courts and the creation of the Femicide Watch database. Holding perpetrators accountable in fair, credible trials will be critical to effectively deterring future attacks on women. This will require supporting victims and survivors and ensuring they know how to report cases of violence and are able to do so safely, without fear of retaliation. Improving the investigative capacity of police units, including through specialized training, will also be critical to ensuring successful prosecutions.
We are further encouraged by your remarks that South Africa is working towards the establishment of a Gender Based Violence and Femicide Council and a National Strategic Plan that will guide national efforts to eradicate gender-based violence and femicide.
Human Rights Watch welcomes your statements in support of decriminalization of sex work in South Africa. We launched a report in August 2019 in Johannesburg together with the Sex Worker Education and Advocacy Taskforce (SWEAT) that shows how a pro-sex worker approach by the Department of Health, the South African National Aids Council and international partners has made improvements in at least some sex workers’ lives, but that ongoing criminalization continues to obstruct access to healthcare and the dignity of the women we interviewed.
Criminalization of sex work also contributes to violence against women. Our interviewees described harassment and verbal abuse at the hands of police officers as well as coerced sex – a form of rape – and extortion. Sex workers in South Africa are unable to work in safe places or in the open, and are forced to work in backstreets, dark parks, in strangers’ cars and other unsafe locations where they face rape and other attacks that they cannot easily report to police. We appreciate your support to sex workers in the past and urge you to instruct the Department of Justice and Constitutional Reform to write and introduce a new bill that decriminalizes sex work, reflecting South Africa’s progressive constitution.
- Protect Environmental Rights Activists
Many people living in communities affected by mining activities across South Africa have exercised their human rights to freedom of expression and peaceful assembly to advocate for the government and companies to respect community members’ rights and protect them from the potentially serious environmental, social, and health-related harms of mining.
Our research shows that in many cases, such activism against the harmful impacts of mining has been met with harassment, intimidation, or violence. For instance, between 2013 and 2018, environmental rights activists in KwaZulu-Natal, Limpopo, Northwest, and Eastern Cape provinces were targeted for expressing opposition to mining projects while demanding their rights to health and to a healthy environment. The origin of these attacks or threats are often unknown.
To date, there has been no progress in identifying or arresting those responsible for the murder in 2016 of Sikhosiphi Rhadebe, a Xolobeni community activist. His family and colleagues told Human Rights Watch that the investigation into his murder has stalled. They said members of Rhadebe’s community had been raising concerns that a titanium mine proposed to be developed on South Africa’s Wild Coast would displace the community and destroy their environment, traditions, and livelihoods. Nonhle Mbuthuma, another Xolobeni community leader and spokesperson of the Amadiba Crisis Committee, told Human Rights Watch that she has also faced harassment and death threats from unidentified individuals.
South Africa’s courts have also been manipulated as important venues for some mining companies to silence opposition to mining projects. Some mining companies have tried to intimidate activists through the court system by using court rulings to prevent protests, and in at least one case, filing strategic litigation against public participation (SLAPP) suits against nongovernmental groups. SLAPP suits seek to censor, intimidate, and silence critics by stifling them with the cost and burden of mounting a legal defense until they abandon their criticism or opposition.
The threats to the personal security of community rights defenders and environmental groups, restrictive interpretation of protest laws, police violence, and harassment through SLAPP suits or social media campaigns have contributed to an environment of fear in some mining-affected communities and for environmental NGOs. These tactics have deterred some people from activism against mining; others have toned down or limited their opposition because of fear – not a change on the merits or substance of their concerns.
We urge the South African government to take steps to ensure the protection of community rights defenders. The government should direct officials at all levels to comply with the country’s domestic and international obligations to guarantee the rights of people protesting mining across the country, including activists in mining-affected communities. The Department of Police should ensure that when reports of credible threats against activists exist, law enforcement officials take all necessary steps to ensure the safety of those threatened. Police should also ensure prompt, independent, and thorough investigations of all reports of killings, threats, attacks, or harassment of community members.
We would also like to draw your attention to an unprecedented international collaboration that brought together mining companies, labor unions, companies that buy mined materials, civil society, and communities affected by mining, to establish the Initiative for Responsible Mining Assurance (IRMA). Together these diverse groups, including Human Rights Watch, developed a shared definition of global best practices described in the Standard for Responsible Mining, and a trusted independent way to measure achievement of these practices at industrial-scale mine sites around the world.
Given that South Africa is a leading country providing mined materials, and thus experiences both the environmental and social impacts, as well as the opportunity for economic benefits from mining, we urge your administration to ask that the mining industry in South Africa operate using best practices. IRMA's Standard for Responsible Mining and independent assessment are tools South Africa may use to drive improved performance at mines and give greater market value for companies to operate in a manner which protects human rights and environmental values.
We encourage your government to ensure that companies operating in South Africa comply with their existing human rights responsibilities, and to urge them to adopt and implement the Voluntary Principles on Security and Human Rights, including by recording and reporting allegations of credible human rights abuses by police in their areas of operation to appropriate government authorities and encouraging investigations of allegations.
- Place Human Rights at the Center of South Africa’s Foreign Policy Agenda
Human Rights Watch urges your administration to draw on former president and global icon Nelson Mandela’s 1994 declaration that “human rights will be the light that guides our foreign policy,” by working to protect and promote fundamental freedoms across Africa and globally. A human rights-respecting foreign policy agenda is consistent with one of the seven priority areas for your administration as indicated during your SONA speech: “a better Africa and world.”
In recent years, South Africa has not consistently placed human rights at the heart of its foreign policy, despite numerous opportunities to do so. Examples include South Africa’s failure to condemn a multitude of human rights abuses (in Zimbabwe, Sudan, Cuba, China, Belarus, Indonesia, Iran, and Myanmar); the abandonment of the Southern Africa Development Community (SADC) Tribunal, and the initiative to withdraw from the ICC. With your new popular mandate to govern following elections five months ago, you have an opportunity to signal a start to the foreign policy direction that you promised – including the “new dawn” that you have referenced since first coming to office, inspired by the collective memory of Nelson Mandela and a commitment to realizing Mandela’s vision of a democratic, just and equitable society.
South Africa’s seat at the UN Security Council provides an important opportunity for your administration to restore South Africa’s human rights-based foreign policy and take a leadership role in resolving conflicts throughout Africa and beyond. In announcing its bid for the non-permanent seat, the South African government declared its intention to promote an African Agenda of peace and security in the region, and to end armed conflict in Africa by 2020. Soon after South Africa assumed its seat on the Security Council in January 2019, after receiving the backing of the African Union, you emphasized South Africa’s commitment to “democracy, justice, human rights, and good governance” during a speech in India. In these last nine months, South Africa has taken principled positions on Sudan and the African Union-United Nations Hybrid Operation in Darfur, as well as on thematic areas, such as women, peace and security. However, we regret that your government has yet to support robust Security Council scrutiny on the deteriorating situation in Cameroon, and it did not support the renewal of an arms embargo on South Sudan. It also joined Russia and China in voting against even discussing Venezuela, the biggest refugee crisis in the western hemisphere and for years a center of massive human rights abuses by the government.
Going forward, we hope that South Africa’s votes, speeches, and other initiatives at the Security Council, as well as at the UN Human Rights Council in Geneva, will soon show that your administration is committed to a consistent human rights-focused foreign policy agenda.
South Africa can also play an important leadership role on human rights at the African Union and SADC. Through these fora, we urge you to take positions that are in line with South Africa’s constitutional obligations and are unambiguously pro-human rights – even if it means South Africa is at odds with leaders of other African states whose governments are trampling on the rights of their citizens. Your upcoming leadership at the AU provides your government with another substantive opportunity to champion human rights.
We also urge you to demonstrate South Africa’s commitment to justice for the most serious international crimes by reaffirming South Africa’s unequivocal support of the International Criminal Court (ICC). This is especially important as the ICC is the only permanent institution with a mandate to respond to the most extreme violations of international human rights and humanitarian law, including mass murder, rape, and the targeting of civilians.
South Africa was one of the most active African countries in the historic negotiations to establish the ICC, and South Africa became one of the first ten African states to become an ICC member, ratifying the treaty in 2000. The ICC has yet to fulfill the enormous expectations that states, international institutions, civil society, and victims have for its operations, but engagement by ICC members is, we believe, the best way for it to become the most effective institution possible to bring redress to victims.
We also urge you to support the critical work of the Special Criminal Court in the Central African Republic, and to help ensure that deals are not cut with abusive warlords that will undermine efforts to ensure justice for war crimes and crimes against humanity committed in the country.
Zimbabwe, suffering from an economic crisis, gross mismanagement of public funds, the absence of the rule of law, corruption, rights violations, and macro-economic policy instability , is asking South Africa for a bailout package of US $1.2-billion, presenting your government with opportunity to press for key reforms in Zimbabwe.
On Cameroon, South Africa should pay more attention and take concrete action in order to address the crisis in the Anglophone regions of the country. South Africa should also mobilize African states to demand the UN Security Council add Cameroon as a formal item on its agenda, for it to address the crisis in the Anglophone regions.
In Sudan, we hope you will support the new transitional government to prioritize human rights and accountability for abuses against protesters, notably during the June 3 attack on the sit-in in Khartoum, but also for abuses during the 30-year rule of ousted president Omar al-Bashir.
In South Sudan, we hope you will push for the establishment of the long-awaited hybrid court that would try war crimes and other international crimes committed since the outbreak of war in December 2013. The African Union’s unprecedented Commission of Inquiry on South Sudan proposed the approach and warring parties have twice agreed to this court, in the 2015 and 2018 peace agreements. South Sudanese officials should sign the memorandum of understanding on the court developed with the African Union Commission, or the commission should move ahead unilaterally to establish and operationalize the court.
This month, the UN Human Rights Council will decide whether to extend the mandate of the commission of inquiry on Burundi for another year. The Burundian government has refused to cooperate with this or any other international human rights mechanism. In 2017, African states supported an alternative resolution to provide technical experts to the government to improve its human rights record, but the government revoked the experts’ visas and expelled them in May 2018. South Africa was at the forefront of mediating the 2000 Arusha Accords. We hope you will once again work with other African leaders to publicly support the renewal of the mandate of the commission of inquiry and send a clear message that there will be real consequences unless Burundi’s leaders rein in the ruling party’s youth league, the Imbonerakure, and end the violence and repression ahead of the country’s 2020 elections.
As South Africa prepares to assume the chair of the African Union in 2020, we also hope that you will work to promote continent-wide human rights goals, such as efforts to end child marriage; ensure pregnant teenagers are able to continue their education; end attacks on education and the use of schools for military purposes; and improve the independence and effectiveness of national human rights commissions.