b. As South Africa’s designated ‘A’ status national human rights institution (NHRI), the SAHRC has submitted both a List of Issues Report to the Committee in April 2015, and, last month an NHRI Parallel Report. These reports provide the Committee with the SAHRC’s responses to South Africa’s initial country report under the International Covenant on Civil and Political Rights (ICCPR), and the Government’s replies to the Committee’s List of Issues Report.

c. The South African government submitted its initial country report under the ICCPR to the Committee in November 2014. Having ratified the ICCPR in 1998, this initial country report was 14 years late. Despite its lateness, much of the information contained in the report was outdated. The delay in submitting reports under UN treaty bodies comes at a time when South Africa’s commitment to upholding its obligations under international law is dubious. Just last year, the South African government overrode a decision of a High Court, as well as a request of Justice Cuno Tarfussor, a judge of the International Criminal Court, to arrest Sudanese President, Omar Al-Bashir. These occurrences are worrying for a human rights institution seeking to promote the domestic harmonization of international laws and standards in South Africa.

d. It is also relevant to provide a little context to the current economic situation in South Africa. South Africa is currently experiencing an economic low, with the national currency losing 26% of its value in the last six months. There are important concerns being raised about levels of corruption – a significant issue which detrimentally affects the realisation of human rights. But further, with the country’s economic situation being so fragile, the SAHRC remains concerned for those living in poverty, and particularly for those whose lives depend on the government’s delivery of socio-economic rights, including water, sanitation, social grants, education, and housing.

e. Since there is limited time in which to present, I trust that the Committee will look to our two NHRI reports for further details on the issues mentioned here today.  However, the SAHRC wishes to raise the following key areas of concern with the Committee.

Some Areas of Concern

1. Racism and Xenophobia

1.1 Racism is widespread across South Africa. The highest percentage of cases received by the SAHRC relate to matters of racial equality. Acts of xenophobic violence still occur across the country. While efforts are being made by the Government to address some of these issues, including the development of a National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerances, this remains a critical human rights concern in South Africa.

1.2 Noting these broader concerns, and subsequent to investigating a matter regarding the racially motivated death of a student at a South African university, the SAHRC held initiated a series of hearings during August 2014, aimed at investigating the state of race relations at South African universities and transformation challenges. This hearing focused on identifying the factors that sustain racism in our universities and measures that can be undertaken to improve racial cohesion and tolerance.

1.3 Another related concern is the treatment of, and xenophobic attitudes towards, non-nationals, migrants and asylum seekers. The SAHRC further wishes to draw the Committee’s attention to the alleged statements of King Zwelithini, the Zulu king. King Zwelithini was alleged to have made comments which incited violence against refugees and non-nationals, at a time when there was a national concern of xenophobia. The King’s comments are currently under investigation by the SAHRC.

1.4 The SAHRC has been calling for increased understanding into the various ways in which racial discrimination manifests, and the intersectional discrimination experienced particularly by black women living in poverty. In addition, it is recommended that the Committee call for South Africa to speedily finalise the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerances, as well as to ensure that legislative developments in this regard are consistent with South Africa’s obligations under the Durban Declaration and Programme of Action adopted at the World Conference Against Racism in 2001.

2. The Rights of Indigenous Communities and Persons

2.1 The SAHRC was pleased to note that the rights of indigenous persons were included in the Committee’s List of Issues Report. Noting the continuing human rights concerns of indigenous groups in South Africa, the SAHRC has begun a process of public hearings aimed at understanding these concerns amongst Khoi and San peoples.

2.2. The SAHRC has previously investigated the problematic attempts of the Khomani San peoples to reclaim and settle large areas of land. The SAHRC found that ‘there currently exists a situation of disarray among the Khomani San people that benefitted from the land claim process and a situation of incoherent management of the Kalahari land,’ owing in part to failures during the land-claim implementation process ‘to protect basic human and other rights of the land claim beneficiaries’.

2.3. Further, in a submission to the Office of the High Commissioner of Human Rights on the right to participate in public affairs the Commission noted with concern that indigenous persons, such as the Khoisan, have been historically under-represented in South Africa’s Parliament. In the recent national elections of 2014, the Khoisan people entered their own political party for the first time: the Khoisan Kingdom and All People party. The party did not, however, win any seats in Parliament.

2.4. It is also worth noting that the Traditional and Khoi San Leadership Bill [23-2015] is currently before Parliament. Whilst the Bill seeks to formally recognise the Khoi and San communities and provide political rights, inter alia, the SAHRC notes that several concerns with the Bill have been raised by the Khoi San community, and will continue to engage in dialogue with Khoi San leaders.

2.5. The SAHRC recommends that the Committee urge the South African Government to ensure that a thorough public participation process is undertaken which gives meaningful consideration to the views and inputs of those most affected by the Bill. Further, the SAHRC further requests the Committee to refer the Government to its commitments under the UN Declaration on the Rights of Indigenous Peoples which South Africa voted for in 2007, as well as the Outcome Document of the High-level Meeting of the General Assembly: The World Conference on Indigenous Peoples which South Africa adopted in 2014.

3. Gender Based Violence

3.1 The SAHRC remains extremely concerned with the high levels of violence against women and LGBTI persons. While the SAHRC is engaged in the processes of the National Task Team established to develop a national intervention strategy that will be used as a guide to clamp down violence against LGBTI persons, it is recommended that the Committee urge the South African Government to ring-fence adequate budget to ensure the vision of the LGBTI programme is realised, and that discrimination against such persons is eradicated.

3.2 In light of the above, the SAHRC recommends that the Committee urge the South Africa Government to adopt an integrated plan to address gender based violence in all its manifestations; and, in particular, to note the way in which gender based violence intersects with other forms of discrimination, marginalisation and violations of human rights.

4. Treatment of Persons Deprived of their Liberty

4.1 The SAHRC noted a number of concerns regarding instances of torture and cruel, inhumane or degrading treatment in its List of Issues report to the Committee, as well as issues regarding the treatment of persons deprived of their liberty. The SAHRC also notes with concern the high numbers of investigated or unknown deaths which occur at the hands of law enforcement authorities. The SAHRC regularly hosts advisory meetings with key academics, organisations, stakeholders and government officials on the prevention of torture. Noting the ongoing concerns regarding the use of torture in South Africa, the SAHRC is currently preparing a report on the issue which will be tabled in Parliament. The SAHRC works closely with the Ministry of Justice and Correctional Services on the establishment of an National Preventative Mechanism (NPM) under the Optional Protocol to the Convention Against Torture (OPCAT).

4.2. In order to update the Committee, the SAHRC wishes to draw attention to a report prepared in 2015 by Constitutional Court Judge Cameron on conditions in Pollsmoor Correctional Centre, in the Western Cape of South Africa. In the report, Judge Cameron states that ‘the extent of overcrowding, unsanitary conditions, sickness, emaciated physical appearance of detainees, and overall deplorable living conditions were profoundly disturbing’.[8] With regard to overcrowding in the facility, the report notes that Pollsmoor was, at that point, at 300% capacity.

4.3. Noting the very worrying report of the Constitutional Court, the SAHRC recommends that the Committee call upon the South African Government to provide up-to-date information regarding steps currently being taken to address the issues laid out in the report, and to address issues of overcrowding and conditions in correctional centres across the country. Further, the SAHRC recommends that the Committee seek information from the Government regarding the dramatic increase in overcrowding in correctional centres.

4.4. In addition, the SAHRC wishes to highlight to the Committee its experiences in handling matters regarding the treatment of non-nationals held at a Repatriation Centre. In 2014, the Gauteng High Court handed down a judgement in favour of the SAHRC in a matter regarding the detention of 39 individuals at the Lindela Repatriation Centre who were held beyond the requisite time frame of 30 days as stipulated under section 34 of the Immigration Act. The individuals were detained for over 120 days without a warrant. The court accordingly found this to be unlawful and unconstitutional and ordered the respondents to, inter alia, take all reasonable steps to terminate such unlawful detention practices.

4.5. In light of this, the SAHRC requests the Committee to call upon the South African Government to provide information regarding steps taken to ensure that the rights of non-nationals entering the country are fully protected, particularly when individuals are detained.

4.6. In addition, the SAHRC noted various issues with regard to juvenile justice in its NHRI parallel report to the Committee. In short, it is recommended that the Committee urge the Government to allocate adequate funding to community based diversion programmes for children; and further, that the Committee request the Government to report on measures taken to ensure that children in conflict with the law are placed separately from children in need of care.

5. Protest Action

5.1 There has been an increasing trend of protest actions over the past few years, which the SAHRC has been monitoring.

5.2. In November 2015 the SAHRC released its Investigative Hearing Report on Access to Housing, Local Governance and Service Delivery. The report showed how exercise of the right to protest was a catalyst for understanding the state of enjoyment of other rights, such as water, health care and housing. In communities where so called “service delivery protests” took place, a lack of adequate housing provisions was evident.

5.3. The report also highlighted how protest action was used by communities as a last resort, where all other channels of communication between the community and local municipalities had broken down. Protesting communities have limited access to information from local municipalities regarding integrated development plans, for example; and are excluded from procurement processes for service delivery in their areas. Where mechanisms for engagement between communities and local municipalities exist, such engagements are not conducted in a meaningful way which takes into account the presentations and opinions of the community.

5.4. The report noted that despite media reports indicating otherwise, the vast majority of these protests are peaceful in nature. Despite this, however, the SAHRC continues to be concerned by the disproportionate use of force exercised by law enforcement officials during protests. The SAHRC entered into a memorandum of understanding with the South African Police Services to work together on human rights and policing. This is still new and the police has shown a willingness to cooperate.

6.  Concluding remarks

6.1. The relationship between the SAHRC and the Department of Justice and Correctional Service is very constructive. It was the current Ministry that saw to the submission of the ICCPR report and other reports. The Human Rights Directorate in the Department of International Relations and Cooperation is also providing strong leadership on the international human rights instruments.

6.2. The question of domestication and in particular the nexus between international human rights law and constitutional law needs much more attention by the State Party. The parliamentary portfolio committee on justice and correctional service is in need of more education and debate on this nexus. There seems to be a misunderstanding by the Chairperson of that Committee that international human rights law dwarfs African customary law.

6.3 There are many issues that can be referred to in augmenting the current reports before the Committee e.g. the non-compliance with this Committee's decision in the McCullum case.  However, the international accountability that the reporting process provide must still be worked on between the State Party and the SAHRC. It is my experience that the State Party through the Ministry of Justice and Correctional Service is not averse to such critical dialogue.

ENDS
Issued by the SA Human Rights Commission
Isaac Mangena
Spokesperson
0718848273