Human Rights WatchGovernment Human Rights Commissions in Africa ContentsDownloadPrintOrderHRW Homepage

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






    By its own admission, when it first started operating, the SAHRC found itself driven more by complaints than by a strategic vision for carrying out its mandate. As it has matured, the commission had developed certain areas of focus, and has taken a high profile especially on issues related to discrimination. The commission has certainly established itself as an important institutional presence and has had the courage to take unpopular stances, in particular speaking out against xenophobia and against public and media calls, driven by widespread concern about violent crime, for constitutional rights "tying the hands of the police" to be diluted. It has produced or collaborated in the production of several substantial reports on a wide range of issues, and has successfully resolved many of the complaints referred to it, giving high profile legal-type rulings in a number of cases. By its attention, the SAHRC has also been able to raise the profile of particular issues that might otherwise have had less attention. The poverty hearings, for example, held at the initiative of Sangoco, brought the need for economic justice into focus at a time when many in the human rights and development community felt that the government was concentrating on courting international investors through macroeconomic rectitude rather than attending to the needs of what should be its key constituency, the poor and dispossessed.241

    Yet although the interventions of the commission have become more substantial and systematic as it has gained experience, some outside observers still criticize it for a lack of focus and thoroughness in its investigations, and in particular for spreading itself too thinly among many issue areas, rather than concentrating on a few where it could remain engaged and make a real difference. "The Human Rights Commission is an important body and has made some very useful inputs," said Govender of the Human Rights Committee, "but it has not really lived up to the expectations we had. Some of the commissioners are not of very high quality, and the body seems to lack focus, spreading itself too thinly. While there have been some really good investigations and reports, others have been disappointingly legalistic and cautious." Others have criticized some of the SAHRC's interventions as being designed to grab headlines without achieving much. The decision to conduct an investigation into racism in the media was (perhaps predictably) damned in much media comment:

    The inquiry will bring only self-deprecating breast-beating or open defiance. .... Instead, Pityana and company should take a page from the Commission on Gender Equality whose careful media strategy has brought a sea change in the coverage of rape, battery, femicide, witch-burning and its other campaigns."242

    The decision of the commission in February 2000 to issue subpoenas to media representatives to respond to the conclusions of the November 1999 interim report into the issue was further and more roundly condemned, with many seeing behind the attempt to compel testimony a threat to freedom of expression. Others questioned the priorities of the commission, when so many urgent human rights challenges face South Africa. Rhoda Khadalie, a former commissioner who had resigned over disagreements at its management, commented in the Mail and Guardian, one of the newspapers subpoenaed, that the commission had become "the self-appointed `thought police' of the new South Africa" and had "failed in its role as the protector of the values enshrined in the Bill of Rights." She called on the commission to "rid itself of the mediocrity and lack of professionalism that have characterized its deliberations thus far."243 It seems clear that the approach was at the very least a tactical mistake in obtaining media cooperation and good will in dealing with the issue of racism, which most of those targeted by the commission acknowledge to be a problem in the media as much as in other sectors of South African society.

    Human rights NGO were especially critical of commission chair Barney Pityana after he gave a paper, in his personal capacity, suggesting that the state should call a halt to prosecutions based on violations during the apartheid era-the paper went well beyond a position statement on the TRC's final report adopted by the commission in November 1998.244 A statement issued by the Centre for the Study of Violence and Reconciliation and signed by several other NGO scathingly criticized Pityana for his comments, which, they said, "risk undermining all that the Human Rights Commission is supposed to defend."245

    The multiplicity of monitoring bodies created by the constitution and by legislation has led to some confusion. In an attempt to address this issue, the SAHRC chairs a coordinating forum among the Chapter 9 and similar institutions, which has quarterly meetings at both chief executive and head of department level. Yet the Human Rights Committee has noted that "a person may be referred to multiple bodies, beginning processes anew every time."246 While not advocating any immediate merger of the different institutions, Pityana of the SAHRC agrees that the current arrangement is problematic: "The proliferation of bodies has created overlapping jurisdictions, which is very confusing for the public; it is costly for the taxpayer; and it creates the possibility of unhealthy competition among us for media attention, resources, and the like, as well as opening the different institutions to future manipulation by the government."247 The SAHRC has also identified the need for rationalization of "the proliferation of human rights specific bodies in various government departments," and has made submissions to cabinet in that regard. It complained, for example, that the Gauteng provincial minister (MEC) for education and the national police commissioner both ordered inquiries into racism, in schools and among the police respectively, even though it was known that the commission was already engaged in similar investigations.248

    Some also believe that the creation of both a human rights commission and a gender commission has had the paradoxical effect of marginalizing women's rights issues. Although others maintain that the Commission on Gender Equality has given women's rights a higher profile, a staff member at the Commission on Gender Equality noted to Human Rights Watch that the gender commission was clearly seen as the less important body, the SAHRC being the "real" commission; while the creation of a separate body to deal with issues of women's rights had also led the SAHRC to regard women's rights as not within its mandate.249 However, there have been increasing attempts to coordinate the work of the human rights and gender commissions, and in several of the regional offices the two bodies share premises. Ultimately both bodies will share their headquarters with the Constitutional Court, and other Chapter 9 institutions, in new premises being constructed in Johannesburg. Currently, the head offices of the SAHRC are in Houghton, an upmarket suburb of Johannesburg difficult to access by public transport and some distance from the neighborhoods where most NGO and government departments are found.

    Another weakness of the commission, and other Chapter 9 institutions, is the lack of clarity as to the action that should be taken on its recommendations.250 The SAHRC has itself expressed its dismay at the failure of parliament to debate its reports in a timely manner and in depth. "We are frustrated by the fact that we conduct detailed investigations and make reports with important recommendations, and then nothing happens," said Pityana in November 1999. "Even our first report on economic and social rights, constitutionally mandated and submitted months ago, has not yet been debated."251 In a report on parliamentary oversight of the Chapter 9 institutions, commissioned by the speaker of parliament and welcomed by the commission, Professor Hugh Corder of the University of Cape Town recommended that a special parliamentary committee be established with particular responsibility for considering the reports and recommendations made by the SAHRC and its sister institutions, and that new legislation be adopted in the form of an Accountability Standards Act and an Accountability and Independence of Constitutional Institutions Act.252

    The SAHRC has worked closely with NGO and academic institutions on several projects, and openness to NGO input has undoubtedly strengthened its capacity to conduct research and advocacy on issues such as xenophobia. Jonathan Klaaren of Wits University, who coordinated the work of law students in researching conditions for deportees at Lindela, noted that "the commission was open to working collaboratively and innovatively with the faculty of law. Without its support, the research project would have been impossible to carry out."253 Yet some South African NGO, who started off with high expectations, have been critical of the way the collaboration has worked in practice. Christof Heyns, director of the Centre for Human Rights at the University of Pretoria, who headed up the project to prepare a report on the government's record on economic and social rights, commented that although NGO had been involved in the early stages, they had later been excluded and in particular had not been allowed independent access to the material collected after their report was submitted to the commission, although they had understood that this would be the arrangement. "The domestic reporting procedure on economic and social rights is potentially a very powerful tool to secure greater realization of these rights. But it is important to involve civil society in the process, which has so far largely been shrouded in secrecy. By doing this the expertise of NGO will be gained, and the process will serve the purpose of stimulating national debate and involvement in the realization of economic and rights. In addition, capacity needs to be built at the commission to steer the implementation of this novel and important mechanism. Development of this kind of mechanism requires staff continuity."254 Responding to this criticism, however, Commissioner Jody Kollapen noted that "while there is a need for civil society involvement, at the end of the day the report is that of the commission, which civil society must be able to critique. It is not a joint report."255

    The Nkuzi Development Association, an NGO working on land reform issues whose representations to the commission were instrumental in the decision to investigate violence against farm workers in the Northern Province, criticized the final report for failing to address the systemic nature of the problems: "The commission was far too legalistic in its approach" said Marc Wegerif, director of Nkuzi.

    It tried to consider each case presented to it as if it were a criminal court, but it had no capacity to investigate the `charges' properly. So it ended up simply comparing the statements made by farm workers, farmers, and police, and either dismissing cases or being unable to come to any clear findings. The report made no attempt to address the systemic and institutionalized racism that prevents the criminal justice system from protecting the rights of the majority of the population in this area. The commission did not even recommend that the government begin the most basic step, the systematic monitoring of conditions on farms and of the response of the justice system to cases of violence. The cases that we have come across clearly indicate the need for such monitoring.0

    The SAHRC has realized some substantial achievements since it was founded in 1995. Summing up the commission's first four years, chair Barney Pityana emphasized to Human Rights Watch the successful "development and affirmation of our independence, while maintaining the close relationships necessary with both government and civil society," as well as growing media and recognition of the commission's role in protection and promotion of human rights.1 Yet given its extensive legal powers, funding, and other resources, superior to those of most similar institutions in Africa, it could have achieved more. There is a need for rationalization and coordination of the various constitutionally established bodies handling human rights issues, as well as for the commission itself to ensure more follow-through where it has taken up complaints or issues; more effective deployment of funds and human resources; a greater tactical sense in the setting of priorities and the handling of matters such as the inquiry on media racism; and greater accessibility, effectiveness, and public awareness of its role in addressing individual complaints as well as patterns of abuse. The system for appointing commissioners should be addressed to ensure consistently high quality appointments rather than a perceived political balance. Nevertheless, the commission has established itself as an important player on the national scene, and has the potential, especially as it develops regional offices, to make a concrete difference to individual lives as well as to the development of national policy.

Human Rights Watch World Report 2001

Africa: Current Events Focus Pages

The Latest News - Archive













Sierra Leone

South Africa







Copyright © 2001
Human Rights Watch