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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






    In December 1996, the SAHRC released a business plan for the period 1996 to 2000. The plan set five goals for the commission:

167. provide information, education and training on human rights;
168. address violations of human rights;
169. establish a comprehensive research and documentation center;
170. establish the SAHRC as a national resource and focal point for human rights advocacy; and
171. establish and maintain an effective and efficient administration.222

At the beginning of 1998, described as "a momentous year, in which we moved from constructing a vision and setting up structures to fine-tuning the implementation of programmes," the commission set its priority programs: developing a national action plan on human rights; equality; socio-economic rights; and the administration of justice.223 The commission has made interventions at various levels: high level advocacy with government to affect policy or legislation; human rights education and training of the public and government officials; hearings and investigations into situations of rights abuse; and individual investigations.

    The SAHRC was the lead institution behind the drafting and adoption of the National Action Plan for the Promotion and Protection of Human Rights, working closely with the Department of Justice.224 On December 10, human rights day, 1998, the government announced the adoption of the plan of action, as well as the ratification of a number of U.N. human rights treaties.

    The SAHRC has been actively involved in human rights education, including the development of human rights content for "Curriculum 2005," a transformed national curriculum for South Africa's schools. During the annual human rights week in March each year (leading up to South Africa's human rights day, March 21, the anniversary of the 1960 Sharpeville massacre), the SAHRC has been involved in a range of human rights awareness programs in schools. The commission has secured representation on a range of bodies involved in developing national and provincial education programs for different qualifications, including teacher training. The commission has held training workshops for a number of government departments, prioritizing the departments of justice, home affairs, and correctional services, the police, and the army. These training programs have been developed in conjunction with the U.N. Office of the High Commissioner for Human Rights; the SAHRC has also developed manuals for others to hold workshops on human rights issues. The commission has promoted human rights through leaflets, poster campaigns, newspaper advertisements, and radio and television programs; it was on the steering committee for a thirteen part television series on the constitution and bill of rights broadcast in 1998, and edited scripts for accuracy with regard to human rights.225

    Where the SAHRC has received a large number of complaints from particular groups, it has attempted to address the concerns raised on a more general basis, even if it does not have the power to resolve the particular complaints lodged. In common with many similar institutions, the largest number of communications have been received from prisoners. One of the first large-scale projects undertaken by the SAHRC was a national investigation into prison conditions. Following violent disturbances in November 1996, after which there were complaints that warders had used excessive force, public hearings were held in Leeuwkop prison, Gauteng province. Prison officers and inmates were also interviewed at several prisons in the Western Cape, including Pollsmoor, after riots in 1997, in an attempt to help mediate a resolution to the dispute. The commission also compiled a comprehensive report on conditions generally in South African prisons, based on visits, some of them unannounced, to a range of prisons across the country and communications from prisoners, which was submitted to parliament in 1998.226 The commission criticized aspects of the regime at a new closed maximum security unit (C-Max) at Pretoria Maximum Prison, and co-hosted, with the Human Rights Committee, a workshop on the human rights implications of maximum security prisons. With the appointment of a Judicial Inspectorate to look into prison conditions, in accordance with 1998 legislation, it is anticipated that the SAHRC's workload on prison matters will reduce and that most complaints will be referred to the inspecting judge. A memorandum of understanding was drafted to ensure cooperation.

    After prison conditions, the largest number of complaints lodged with the SAHRC has concerned discrimination. Reflecting this trend, the commission has devoted a substantial amount of its time to investigating claims of racial discrimination or racial violence, and commission chair Barney Pityana has adopted a high profile on these issues. The SAHRC was closely involved in the process of drafting the equality legislation required by the constitution to give positive statutory backing to the prohibitions on discrimination in the bill of rights. The commission co-sponsored the Equality Legislation Drafting Unit with the Department of Justice, and in 1999 became the secretariat for the unit. The Western Cape office of the commission compiled an audit of the complaints it had handled relating to the equality clause in the constitution, to assist the legislation drafting unit. Commissioners have visited schools and higher educational institutions to investigate racial abuse and violence, and made recommendations to the appropriate authorities. A study of racism in schools was published in March 1999.227 Public hearings have been held in several cases of alleged racism, including during 1999 in relation to allegations of racist practices among the Vryburg police, North West Province. The commission has also intervened in cases of gender discrimination, and joined with the National Coalition for Gay and Lesbian Equality in a (successful) court application to declare laws against consensual same sex conduct unconstitutional.

    Following a complaint about two newspapers from the Black Lawyers Association and the Association of Black Accountants of South Africa, the SAHRC undertook to carry out an investigation of racism in the media (though it declined to investigate the individual complaints); it began formal monitoring of media coverage during 1999. In November 1999, it published a controversial interim report, widely attacked by all sections of the media and by other commentators, who questioned the report's focus on issues such as "subliminal racism," rather than sticking to constitutionally recognized rights. In February 2000, the commission became embroiled in a full scale confrontation with the South African National Editors' Forum and other media representatives when it issued subpoenas to representatives of more than thirty South African media organizations to attend hearings on media racism. After a widespread outcry at a perceived threat to constitutionally guaranteed rights to free expression, a compromise was reached by which the subpoenas were withdrawn and the media representatives agreed to appear on a voluntary basis.

    Section 184 of the final constitution gave an additional mandate to the SAHRC to monitor the realization of economic and social rights by the state. The commission must require organs of state to report on an annual basis on measures taken to bring about the realization of the rights to housing, food, water, social security, health care, education and the environment. In conjunction with a group of NGO coordinated by the Centre for Human Rights at the University of Pretoria, the SAHRC developed and sent questionnaires to all government departments in the course of 1998. The NGO submitted a report to the commission in 1998, and a six-volume report based on this information with recommendations on the government's constitutional obligations was released in March 1999. In an initiative led by the South African National NGO Coalition (Sangoco), the SAHRC and the Commission on Gender Equality held hearings on poverty throughout the country in early 1998. The report, published by Sangoco, on "Poverty and Human Rights" recommended campaigns and training programs to increase awareness of human rights, including economic rights, in poor communities; efforts to improve access to legal services and the responsiveness of government officials; a proactive government role in ensuring access to basic services; and the development of strategies to remove gender-based obstacles to the enjoyment of rights. A national plan of action on poverty is being developed in conjunction with Sangoco.228 The commission has participated in or jointly organized several conferences touching on social and economic rights, including, during 1999, conferences on food security and nutrition (in conjunction with UNICEF and WAHRN, an Oslo-based NGO) and the impact of the government's macroeconomic policies on the rights of the child.229

    The SAHRC has sponsored workshops on draft legislation to promote "open and accountable government" including the constitutionally required Promotion of Access to Information and Administrative Justice Acts, during their preparation. It has made submissions to parliament on a range of other legislation affecting human rights issues. The commission has also examined areas related to the failure of the criminal justice system to protect the rights of particularly vulnerable groups of people in South Africa. Following on from the poverty hearings in early 1998, the SAHRC held hearings in August and November 1998 in the Messina area of Northern Province about abuse of farm workers in the region. In February 1999 it released a report in which it referred several cases to the provincial director of public prosecutions for further action.

    In conjunction with the law clinic and Centre for Applied Legal Studies at the University of the Witwatersrand and the nongovernmental organization Lawyers for Human Rights, the SAHRC conducted an investigation into the circumstances of arrest and conditions of detention at the Lindela repatriation camp, a private facility used by the Department of Home Affairs to hold undocumented migrants before their deportation, using law students to carry out a large number of interviews on which the final report was based. The report concluded that the interviews "provide compelling evidence of the unnecessary and unlawful suffering which current enforcement procedures are exacting on foreigners and South Africans alike."230

    Following the killing of three foreigners on a train in September 1998, the commission convened a conference on xenophobia the next month. The conference adopted a statement calling for a public awareness campaign, with the aim of reducing violence against foreigners and improving police response. The commission has maintained its focus on this issue, chairing the National Consortium on Refugee Affairs (NCRA), which brings together NGO, regional refugee coalitions, the Department of Home Affairs and international agencies such as UNHCR. The commission took the lead in developing a training manual for immigration officers, as well as developing a national plan of action on xenophobia titled "Roll Back Xenophobia 1999." The emphasis on abuse of migrants and the development of an effective policy on migrants should be strengthened by the appointment of Zonke Majodina, responsible for developing a master's program in forced migration at the University of the Witwatersrand, as a part time commissioner from August 1999.

    In August 1999, Barney Pityana, chair of the commission announced that commissioners would also start to visit police cells regularly; unannounced visits took place in September 1999, in consultation with the ICD.231 In response to public and media perceptions that the new constitution gave too many rights to "criminals," the commission has stated its commitment to the development, in conjunction with the Department of Justice, of a "victims charter" and to carrying out education for the public and government officials on victims' rights.

    The SAHRC has adopted formal internal regulations for the handling of individual complaints. Individuals acting in their own interest, as part of a group, in the interests of someone who cannot act for him or herself, or in the public interest, or associations acting in the interests of their members, may approach the SAHRC through writing a letter, telephoning, or calling at its offices-though most are by letter or telephone, since the offices are geographically inaccessible to the great majority of the population. The legal services department makes an initial assessment to determine whether the complaint falls within the commission's mandate. The commission aims to acknowledge receipt within a few days and make an initial decision as to whether the complaint is accepted within two to three weeks. If a complaint is accepted it can be settled by mediation, be investigated by the commission, form the subject of a public hearing, be dealt with as part of a group of complaints, or be litigated by the commission before a competent court. The commission has received assistance from the Canadian Human Rights Commission in developing a litigation strategy. If a complaint is rejected, the decision can be appealed to the chair of the commission within forty-five days. The legal services department is assisted in assessing more difficult cases by the Complaints Committee, consisting of four commissioners and legal officers.232Interview with M.C. Moodliar, head of the SAHRC Legal Department in Access Vol.1, No.2 (Johannesburg: Human Rights Committee, April 1999). 233Interview with M.C. Moodliar, head of the SAHRC Legal Department in Access Vol.1, No.2 (Johannesburg: Human Rights Committee, April 1999). 234

    Complaints from prisoners, especially about assaults and transfers, dominate; among the rest, most have concerned discrimination on grounds of race or, less often, sex, especially in educational institutions. Around 80 percent of complaints are rejected (for example, because the incident complained of took place too long ago), or referred to other bodies (the ICD, the Gender Commission, the Legal Aid Board, the Public Protector, or others) because they do not fall within the commission's mandate. During the period December 1997 to November 1998, the commission accepted 300 complaints from the general public, and 327 from prisoners.235

    The SAHRC has also been active internationally, and individual commissioners have participated in a wide range of conferences, election observer missions and other activities. The SAHRC hosted, with the South African government, the second conference of African national institutions for the promotion and protection of human rights, held in Durban in July 1998. U.N. High Commissioner for Human Rights Mary Robinson was present in South Africa on December 10, 1997, to launch the year leading up to the fiftieth anniversary of the Universal Declaration of Human Rights and participated in the conference of African national institutions.

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