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Protectors or Pretenders? - Government Human Rights Commissions in Africa, HRW Report 2001

South Africa



International Standards: The Paris Principles

Important Factors

Examining the Record in Africa

Innovative and Positive Contributions by Commissions

Regional Iniatives

The Role Of The International Community





Origin and Mandate

    During the negotiations that led to South Africa's first elections on the basis of universal suffrage in April 1994 and the transition from a minority regime to a democratically elected government, much emphasis was placed on the need for new constitutional arrangements to ensure that the appalling human rights abuses of South Africa's past could not be repeated. The interim constitution, which was adopted in December 1993 and came into force following the elections, accordingly provided for the establishment of a range of bodies to monitor government compliance with human rights standards, including a national human rights commission. Legislation was drafted once the new government of national unity led by the African National Congress (ANC) took office, and President Nelson Mandela signed the Human Rights Commission Act, No. 54 of 1994, into law on November 24, 1994. The act came into force in September 1995 and the commission held its inaugural meeting in October 1995.

Chapter 9 of the final constitution, which was drafted by the parliament elected in 1994 sitting as a constitutional assembly and came into force in February 1997, confirmed the position of the South African Human Rights Commission (SAHRC) as one of the "state institutions supporting constitutional democracy," along with the Commission on Gender Equality, the Public Protector, the Auditor-General, the Electoral Commission, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Minorities, and the Independent Authority to Regulate Broadcasting.218 In addition, South Africa has an Independent Complaints Directorate (ICD) to investigate complaints against the police, and, more recently appointed, an inspecting judge to look into prison conditions (although neither body is included under Chapter 9 of the constitution). The new government also established the Truth and Reconciliation Commission (TRC) to investigate abuses committed under the previous government and to grant amnesty for offenses committed by the government or its opponents, under certain circumstances. The TRC, a temporary body, held public hearings from 1996 to 1998 and published a five-volume report in October 1998; a final report will be submitted when all amnesty applications have been finalized, a process anticipated to take several years.

    Although the provisions of the constitution and the legislation establishing the SAHRC give it a very wide mandate, the commission has in practice limited its activities to a narrower range than national human rights institutions in other countries, so as not to overlap with similar bodies created by the constitution and other legislation. It takes no responsibility for issues related to administrative justice (the province of the Public Protector); complaints against the police are referred to the ICD; while women's rights issues are the responsibility of the Commission on Gender Equality. On the other hand, the final constitution added to the commission's mandate a responsibility to report on economic and social rights, and much of the commission's work in practice has focused on related issues. South Africa's bill of rights has "horizontal effect" and binds not only the state but also "natural or juristic persons." Accordingly, the SAHRC may investigate relations between individuals or between individuals and corporate entities, as well as between the state and its citizens.

    In February 2000, the South African parliament passed two acts that will give the SAHRC substantial new duties when they come into force. The Promotion of Equality and Prevention of Unfair Discrimination Act provides that the commission must include in its reports to parliament an assessment of the effects of unfair discrimination, and may request any person or state institution "to supply information on any measures relating to the achievement of equality," assist complainants using the act, or conduct investigations into cases. Government departments are required to submit "equality plans" for the elimination of unfair discrimination to the SAHRC within two years after the commencement of the act, "to be dealt with in the prescribed manner."219 The Promotion of Access to Information Act, providing for public access to government documents, requires the SAHRC to compile a guide as to how to use the act, report to the National Assembly each year about requests for information received by government departments, and conduct education of civil servants and the general public on how to exercise the rights given in the act.220

    The SAHRC has wide ranging powers. In fulfilment of its mandate to promote and monitor respect for human rights, the commission may investigate abuses, take steps to secure redress, including bringing court cases, and carry out human rights education. It may subpoena witnesses, and has called cabinet ministers before it; it also has powers of search and seizure, though these have not yet been used. On pain of criminal penalty, all organs of state at all levels are obliged to render such reasonable assistance to the commission as it may require in order to carry out its tasks. However, it has no power to enforce its recommendations, or even to require a response.

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