SOUTH AFRICAN HUMAN RIGHTS COMMISSION
Presentation to Justice Portfolio Committee, National Assembly, 17 March 1998.
Chairperson and Hon Members, Ladies and Gentlemen:
1. Kindly allow me, first of all to thank you for the invitation to appear before your Committee to make a presentation on the work, experiences and vision of the Commission since its inception. This is the first invitation we have received and we welcome it. We welcome it because we see this as an opportunity for a state institution to make good its responsibility to be accountable to democratic structures of our governance. We understand it as a public duty to the people of South Africa who need to see the democratic process at work. Chairperson, we have produced two annual reports to date. These have been tabled in parliament but elicited minimal response. What we have missed from parliament is a constructive debate on human rights especially the responsibility we all have to establish a culture of human rights. We had hoped that our annual reports would be an occasion for just such a debate. So far, this has not materialised. This presentation does not seek to repeat what is already in the reports. My intention is to present to you the environment and philosophy which motivates our work, an assessment of our successes and failures in carrying out our mandate, the challenges we face and strategies and action plans for the promotion and protection of human rights. Finally, I shall present to you a statement of plans we have for 1998/99.
2. Chairperson, the Human Rights Commission was inaugurated on 2 October 1995 at which meeting I was elected Chairperson and Mrs Shirley Mabusela, Deputy Chairperson. The process of establishing the Commission was very slow for a variety of reasons. The Commissioners were sworn into office on 21 March 1996.
We moved into our permanent premised in May and the Chief Executive Officer, Adv. Louisa B Zondo assumed office on 1 June 1996 from which date the secretariat of the Commission began to be established.
3. During this time, the Commission developed policies. The structure of the Commission and its operational strategies were agreed; each commissioner was allocated specific responsibilities and the committees envisaged in Section 5 of the Act were established. After protracted negotiations, the Staff Regulations were published on 17 May 1996. The structure of the Commission together with Complaints Procedures was also published in the Government Gazette. By proclamation in the Government Gazette dated 17 May 1996, the President brought the powers of the Commission into operation.
RESIGNATIONS AND APPOINTMENTS
4. Of the eleven commissioners appointed by the President in October 1995, Adv. C D de Jager SC resigned in December 1995 upon his appointment to the Truth & Reconciliation Commission. Dr Max Coleman resigned in October 1996 for reasons he preferred to keep confidential. Ms B H Bam resigned in October 1997 upon her appointment to the Electoral Commission. Ms Rhoda Kadalie resigned in December 1997 in very controversial and unfortunate circumstances. The Commission regretted the press campaign surrounding Ms Kadalie's resignation. In the end, Ms Kadalie sought to withdraw her resignation with our support but by operation of the law her resignation could not be withdrawn after the date on which it was to take effect. Mrs Anne Routier has requested that her terms of appointment be changed in order to enable her to serve in a part-time capacity. The Office of the President Office has informed us that there is no provision in the Act for such a change.
5. Following these resignations, the following were appointed to the Commission:
Mr Jody KOLLAPEN December 1997
Mr Jerry NKELI February 1997.
At the moment there are two vacancies.
6. Among staff we experienced a high turnover. We have instituted a procedure whereby exit interviews take place. In almost all cases staff left the Commission because they accepted better paying positions elsewhere. There have also been cases where concerns were raised about uncertainty and low morale largely due to the fact that the budget of the Commission was not approved and programmes were having to be cut. I can think of only three staff who left because of disagreements or dissatisfaction. In all cases it was a matter of staff being willing to work under the management system to which they also contributed.
VISION AND MISSION
7. In December 1996, the Commission adopted the following Mission Statement and Vision for the Commission:
The South African Human Rights Commission is the national institution established to entrench constitutional democracy. It is committed to promote respect for, observance of and the protection of human rights for everyone without fear or favour.
The Vision is expressed in similarly direct terms:
• The Vision of the Commission is to be an effective instrument for the promotion and protection of human rights; to be vigorous, fearless, independent and impartial in campaigns for and in advocacy for human rights.
• As a national institution, we seek to establish the Human Rights Commission as a focal point for human rights practice in South Africa.
• The Commission seeks to be accessible to all South Africans and to offer a competent, efficient and professional delivery of services to all sectors of South African society and its institutions.
8. The Mission and Vision of the Commission were endorsed by the National Conference on Human Rights that was held in May 1997. Conference urged that the Commission should receive "greater support and a wider recognition of its pivotal role as a focal point for human rights policy and practice in South Africa." The Mission and Vision have inspired the work of the Commission, informed its practice and shaped its strategies. Where we have failed to give expression to that Vision, it has been due to inadequate resources. For example, our commitment to become accessible has been thwarted by the fact that resources are not available to open provincial offices. We stated that this was not just a matter of convenience for us but one of supreme principle. In pursuit of that, we have been in negotiations with the Office of the Public Protector, and the Commission on Gender Equality with a view to finding cost-effective - and cooperative mechanisms for the provision of services to the lowest possible level. Negotiations are proceeding.
9. Mindful of its obligations under Section 7(1)(b) of the Act, the Commission has initiated the coordination forum among human rights bodies in the state sector with a view to "foster common policies and practices and to promote cooperation..." The coordinating forum includes independent state institutions as well as statutory bodies and human rights units/projects within government departments. So far it has met three times under the auspices of the SAHRC. Participants appreciate the possibility this forum provides for networking, information sharing and cooperation.
10. As part of this process, the Commission made proposals about the rationalisation of state institutions in order to avoid duplication and wastage. The theory enunciated in our document advocating rationalisation, following discussions with the Office of the Deputy President and the Office on the Status of People with Disabilities, has led to the Commission incorporating the rights of people with disabilities into its work. Funds promised by the Office of the Deputy President to advance this work have not been forthcoming. The Commission has since recognised the advisability of appointing commissioners to specific portfolios in order to advance special human rights concerns like the Rights of the Child, Environment, Equal Opportunities., Administration of Justice and to give effect to some statutory obligations as in the Open Democracy Bill. The NGO advocates on the issues have welcomed this development.
11. We have been conscious that the implications of this development are that the Commission needs to be in full strength all the time. We have even pondered the idea of advocating that all members of the Commission serve in a full-time capacity. We realise that such a development would have financial implications but it would ensure a comprehensive coverage of all human rights issues by a dedicated commissioner. What does not help1 however, is that it should take so long to fill vacancies in the Commission. All it does is that it places an additional burden on commissioners who already have extensive obligations and it causes disillusionment among the public we seek to serve.
FULFILLING THE MANDATE
12. The Mandate of the Commission is set out in Section 184(1) of the Constitution (Act 108 of 1996) read with Section 7 of the Act (Act 54 of 1994). That mandate is expressed in terms of promoting, protection and monitoring human rights. As the reports of the Commission testify, the Commission has endeavoured to fulfill that mandate to the extent of its resources. The problem of an extensive and comprehensive mandate and finite resources must be faced. For that reason, the Commission agreed a three-year strategic plan in 1996. The plan sets out five strategic goals and means of achieving them and thus advancing human rights. Around these operational objectives the Work Plans of both commissioners and the secretariat are structured. As a further refinement of our planning process, the Commission recently underwent a strategic planning workshop for 1998. The workshop further streamlined the operations of the Commission in order to ensure that we can operate effectively within available resources. The workshop held in February 1998 was made possible through the technical assistance programme of the Commonwealth and the Australian Human Rights and Equal Opportunities Commission. An Action Plan was adopted following the workshop.
13. To fulfill our Mandate, we have valued the assistance we have received through the United Nations High Commissioner for Human Rights Technical Assistance Agreement with South Africa, the Commonwealth Secretariat especially in capacity building, the Venice Commission in facilitating exchanges, technical
support agreements with the Australian Human Rights and Equal Opportunities Commission, the Canadian Human Rights Commission well as donors like, inter alia, USAID. The Commission has also gained from partnerships with NGOs and research institutions. We have experts serving on the Section 5 Committee and we are privileged to be able to call on the expertise of many South Africans and NGOs in the service of human rights in our country. Without this support we would never be able to achieve what we set out to do.
14. In order to improve our efficiency the Commission has resolved to appoint a Deputy CEO as soon as possible. That will allow the CEO to concentrate more on strategic interventions and the deputy could deal with systems issues. In order to strengthen the office of the CEO further, we are seeking funding support for an Executive Assistant to the CEO. Her main function will be to develop resources and reporting on programmes as well as being the chef de cabinet to the CEO. Finally, we are seeking technical assistance from the Commonwealth Secretariat for a Strategy, Policy and Planning Advisor to the Chairperson. We expect to see this personnel on board soon.
15. As a Commission we are conscious that we have not begun to address the mandate we have for the development of human rights. We consider that this obligation can best be fulfilled by carrying out studies concerning fundamental rights and by bringing proceedings to a competent court, as envisaged by the Act. Unfortunately, resources have not allowed us to develop this sufficiently. Our Research & Documentation Department has been consistently under-resourced. This year we have benefited from the exchange with the Danish Centre for Human Rights. Kristen Yigen has been seconded to the Commission for a period of one year. Similar support is promised by the government of Finland to cover our responsibilities for monitoring social and economic rights. Regarding bringing proceedings to court, we have been slow to take that route because of resource constraints. We have, however, worked in partnership with other agencies like the Legal Resources Centre to bring matters to court or where convenient we have applied to intervene as amicus curiae.
16. The Mandate also requires us to assess the observance of human rights. The Commission published a report on the status of human rights in South Africa in preparation for the May 1997 National Conference. Ideally, we recognise that we should be publishing such assessment annually along the lines of the UNDP Human Development Report. To be able to do that, though, we need a better-equipped research facility than we can presently afford. The report on monitoring the social and economic rights due to be published in July will be in keeping with this mandate. The Legislation Monitor also helps us to keep abreast of developments in parliament. She also assesses legislation in terms of human rights norms and standards. Resource constraints mean that the Commission can only afford one staff person to monitor legislation. She also needs researchers to support her but there are no funds to employ them. The Legislation Monitor is unable to monitor legislation in the provinces.
17. In order to advance this development aspect of our work, the Commission has sought assistance from the Canadian Human Rights Commission to establish a Litigation Unit. The motivation for this is that it is important for the Commission to have expertise on this matter in order to take key matters to court on the basis of its own analysis and intended outcomes. The Unit will draw on the work of the present lawyers who are concentrating their activities on complaints handling, investigations and resolution of complaints. Secondly, we are planning to have monthly seminars on human rights issues at out Johannesburg office. The idea is to draw on and discuss with various experts current issues in human rights especially judgments of the Constitutional Court. The intention is to find consensus about how human rights jurisprudence could be advanced. This programme will start soon.
PROPOSALS FOR IMPROVING EFFECTIVENESS OF THE COMMISSION
18. In October the Human Rights Commission submitted to the government a Memorandum of Understanding which seeks to regulate relations between government and the Commission as an independent state institution. That Memorandum has not yet been signed because government has not yet approved it. Our hope was that similar agreements could be signed with other structures like parliament and provincial governments. The Memorandum would be a mechanism for informing government officials and ministers about the nature of the relationships between the Commission and government, set out the respective obligations and perimeters for the work of the Commission. The Commission has observed woeful ignorance within government about the Commission that has caused frustration. It was to meet this difficulty that the Memorandum was proposed.
19. The Commission has expressed concern about the effect being put to the concept of "independence" of the Chapter 9 Institutions. This concern is shared with the Public Protector and the Commission on Gender Equality. We believe that at the heart of the problem is the fact that not only is the Minister of Justice the line function minister for human rights in the Executive, an arrangement that is correct and commendable, that also gets extended to provide for the Department of Justice to be the conduit for the budget for the Commission. We believe that the situation as currently prevails jeopardizes the independence of the Commission as envisaged by the Constitution. We also fear that present arrangements fall short of the Paris Principles, the standard adopted by the United Nations for regulating national institutions for the promotion and protection of human rights.
20. Our proposal is that parliament takes a more direct role in facilitating the funding of the Commission and undertaking the supervisory duty required by the Constitution. That will mean that parliament will continue with its role of supervising the Executive and the independent state institution will be an extension of that. The consequence of such an arrangement is that there be a parliamentary committee on human rights which would be an interdepartmental committee overseeing the application of human rights throughout the governmental structure. A report will be presented to the Speaker in the name of three institutions shortly.
21. The Minister of Justice has tabled the Human Rights Amendment Bill. The Bill has our support. The Bill seeks to bring into the Human Rights Commission Act some of the provisions in the interim Constitution which have not been incorporated into the final Constitution and which clearly express the powers and mandate of the Commission. Secondly, we seek to change the name of the Commission to add "South African". That is standard international practice. Finally and significantly, the Bill seeks to give the Commission powers to raise funds and to establish a Human Rights Fund. At the moment the Commission is bound by treasury regulations which mean that the mechanism for generating funds is slow. Donors are very reluctant to subject themselves to that. In any event a Human Rights Fund would be another means of ensuring the independence of the Commission. We commend this Amendments Bill to this Committee for speedy processing.
THE EQUALITY LEGISLATION DRAFTING PROCESS
22. The Human Rights Commission (HRC) recently also embarked on the Equality Legislation Project, as a joint endeavour with the Ministry of Justice. In terms of Section 9(4) and Item 23 of Schedule 6 of the Constitution, national legislation has to be enacted in 3 years to give effect to the right not to be unfairly discriminated against on the grounds of race, sex, gender, religion, sexual orientation, etc, or any of the grounds listed in sections 9(3) or 9(4) (or any other grounds). Therefore legislation has to be on the statute book by February 2000.
23. A Drafting Unit is currently housed in within the HRC. It consists of a Project Coordinator, 2 Researchers/Drafters, and 2 administrative staff members. (The project coordinator is Professor Johann van der Westhuizen, the researchers/drafters are Dr Lindelwa Ntutela and Advocate Sicelo Mthethwa and the administrative staff are Ms Zoleka Moon and Ms Kgomotso Motsoenyane). The Unit and its activities are funded by USAID, as part of a larger agreement to the Department of Justice.
24. The project will entail research, consultation with a wide range of role-players, experts and interest groups, a public awareness campaign and the drafting of discussion documents, a green paper or white paper, and the Bill. The Drafting Unit will account to a Management Team, consisting of the Chair and CEO of the Human Rights Commission, as well as representatives of the Department of Justice sections of Transformation and Equality and Legislative Drafting and of the CMU of the Justice Ministry. Reports will regularly be provided to the Minister. The Unit will regularly consult with a Reference Group of between 12 and 20 persons. This group will include representatives of the Deputy President's office and some other government departments, like Labour and Public Administration, as well as representatives of the Parliamentary Portfolio Committee and Joint Select Committee dealing with Justice, the SA Law Commission and selected NGO's and academic institutions. This Reference Group will consider the research and policy proposals generated. The necessary research will be done by expert researchers from within and outside the Unit, who will operate in a number of focus groups.
25. Consultation and public awareness will play an important part in the bringing about of the legislation, which is constitutionally required, legally and socio-politically desirable, but also complex and bound to be somewhat controversial. One or more large consultative meetings will also take place. The public will also have an opportunity to make submissions. Numerous questions have to be addressed, including whether all constitutional forbidden grounds of discrimination should be addressed in one piece of legislation and what the appropriate remedies and enforcement structures should be. The Unit and related structures will work within a strict time framework in order to meet the constitutional deadline. The product of the Unit's work will be delivered in order to enable Parliament to pass the legislation during 1999.
26. As a Commission we wish to underline the fact that we consider serving in the Commission as a signal privilege and honour. We believe that commissioners and the commission have to exercise their functions with integrity and within the law. The Human Rights Commission Act supports this by protecting the Commission and any member of the Commission against defamation in their official capacity. Section 18 of the Act suggests to us that the Commission should be freed to undertake its duties, to be trusted and held in high regard in the process.
27. As a Commission, we also understand that the work we do places us on the firing line of political debate in the country. We have tried to conduct ourselves as independently as possible and yet firmly set out what we believe the Constitution requires of us.
28. What we have missed often, though, is the sense of support. We have found that too easily the Commission gets drawn into the political debate and that judges us according to one's political preferences. Recent controversies are a case in point:
the misinformation about the salaries and expenditure of the Commission, perceptions and, often, judgments about the state of the Commission have all been treated tendentiously, conclusions drawn often without giving the Commission an opportunity to respond. Finally, the resignation of Rhoda Kadalie appears to have been used in some quarters to score political points against the Commission.
29. Finally, we believe that there are some vital and urgent issues our country needs to face so that a culture of human rights can become entrenched. All evidence suggests that racism is a problem that needs to be dealt with decisively. To do so a national project of racism awareness and sensitivity is called for. Such a programme would be beyond the resources of the Commission but the Commission can contribute to any programmes designed to raise awareness of racism and enabling communities different in race, culture, language or religion, to respect and honour one another and consider differences to be enriching. We believe that what we see in society, as crime is a symptom of a society that has not internalised what human rights mean. We have often said that there is not sufficient recognition in government as elsewhere in society of the value of human rights in nation building and in the establishment of democratic values.
30. We believe that if sufficient account was taken of the Bill of Rights in all processes of governance, indeed in everyday life, we would be changing the mindset and make human rights truly the foundation of our democracy. We do not believe that politicians should be apologetic about human rights. We cannot be a democracy we seek to be without human rights. Therefore, one gets alarmed whenever human rights are used as a scapegoat for society's ills like crime, social breakdown and deteriorating moral standards. Human Rights teach every citizen and member of society to take responsibility for the well being of the society they live in. That is the challenge we face in South Africa today and into the future.
31. Chairperson, Hon members, it is my honour to present to you the 2nd Report of the South African Human Rights Commission for the period 1996-1997. In presenting this report, Mr Chairperson, we wish to acknowledge the privilege and responsibility you have placed upon us. We trust that your confidence in us has been rewarded. Through you and your Committee, Chairperson, we wish to thank parliament for the confidence you have in us and for the honour of service in this manner. We trust that our report will encourage you to debate human rights issues in parliament and influence the way in which society at large views human rights.
32. The report, Chairperson, does not have a Financial Statement. We had to await the Auditor General's report which was not available at the time of submission. The report will, of course, be tabled in parliament in due course. We, however, submit to you the Financial Statement as audited for the period 31 March 1996 - 31 March 1997. It will be recalled, Chairperson, that the financial statement for the preceding period, that is, 2 October 1995 - 31 March 1996, was prepared through the Department of Justice who at that time assisted the Commission before an accounting officer was appointed for the Commission. I also have unaudited Income and Expenditure Statement for the period 1 April 1997 - 6 March 1998 which members may peruse at their leisure.
33. My colleagues are here to respond to any questions that may arise.
Thank you, Chairperson.
N Barney Pityana
Houses of Parliament
17 March 1998.