Mentor's legislative proposals to amend Chapter 9 institutions Acts

Private Members' Legislative Proposals and Special Petitions

19 October 2009
Chairperson: Mr S Thobejane (ANC)
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Meeting Summary

The Committee considered the proposal to amend the South African Human Rights Commission Act and the Commission for Gender Equality Act. Both Commissions presented their views. The proposed amendments addressed protection of human rights, particularly abroad, since the current legislation did not afford sufficient power to these bodies to achieve their mandate outside South Africa. Both of the Commissions agreed that it was important to foster human rights, and that although cooperation between the commissions, their international counterparts and relevant departments was important to achieve this aim, there was a problem in that their Acts did not allow for international powers and recognition to protect citizens outside of South African territory. The SAHRC called for a clear look into what the role of these commissions should be, how far their jurisdiction should extend, and how much power they should be entitled to have, before any legislative amendments were made. There was a need also to look at the experience of foreign jurisdictions, as only Canada seemed to imply that its equivalent Commission would have this power. In addition, both the Commissions noted that there were already amendments to the legislation in the pipeline, the South African Human Rights Commission having identified several issues already and having approached the Department of Justice, and the Commission Gender Equality stating that it had first wanted to finalise internal issues before focusing on this aspect.

The Committee was of the view that it would be preferable to allow the Department of Justice to continue with the processes without complicating the issue by introduction of another Bill.

Meeting report

Hon P Mentor: Private Legislative proposal to amend South African Human Rights Commission Act and Commission for Gender Equality Act
Ms P Mentor said that she was happy to come before the Committee. She said that she had recently been just as traumatised as the rest of South Africa by the Caster Semenya drama. The State had a responsibility to protect the human rights of its citizens. Various bodies of the government and human rights campaigners condemned the ridicule endured by Ms Semenya, but nothing was done to rectify the problem. The Honourable Mentor asked whether there was some other mechanism to protect the rights of South Africans citizens.

She said that international law must be considered, especially in cases where foreign bodies are concerned, but the government must empower gender and human rights bodies to protect the rights of South Africans as far as state and diplomatic relations allow. The Caster Semenya case should not have been made against sovereign Germany, but rather against the organisation that had put her through such trauma. In this case, issues of sovereignty were invalid.

The Honourable Mentor said that she was open to whatever recommendations the two Commissions had to give in order to find an avenue to protect South African human rights abroad. The pursuit of justice in these cases was always costly, but it was worthwhile.

Department of Justice comment on the proposal
Mr Johan Labuschagne, Director, Department of Justice, said that he was not able to comment on the merits of the amendments proposed to the South African Human Rights Commission (SAHRC) Act. His Department was looking at the South African Human Rights Commission Act, which was still based on the Interim Constitution that prevailed at the time the Act was drawn, and which the Department recognised as a problem. The Department had issued a substantive report on the Bill. It was already revisiting the legislation in question. He proposed that the Committee and his Department should have a full idea of all of the proposed amendments before moving forward.

Commission for Gender Equality (CGE) comment on the proposal
Mr Keketso Mahenya, Acting Head of the Commission for Gender Equality, said that he was glad that there was concern being expressed regarding the Caster Semenya issue. The CGE’s mandate was to promote gender equality through monitoring, educating and giving advice on gender equality matters. The Commission had thoroughly reviewed the proposed amendments to the South African Human Rights Commission Act.

Mr Mahenya said that the proposed amendments were plagued with various problems. Numerous issues facing the efficacy of the CGE involved a lack of integration and working together with other bodies like the SAHRC, and non-governmental organisations. The issue of State sovereignty might become a problem when the Commission attempted to protect the human rights of citizens in foreign states. South Africa did not have a recognised agreement to operate organisations in any foreign states. The CGE would make a more complete comment on the draft once all amendments were presented.

South African Human Rights Commission (SAHRC) presentation
Ms Judith Cohen, Head of Programme: Parliamentary & International Affairs (PIAP), South African Human Rights Commission, said that the amendment proposals presented many complex issues which had to be taken individually and considered further.

The SAHRC was focussing on the plight of inter-sex South Africans. The nature of the debate that had taken place in the media, on Caster Semenya, was embarrassing to all inter sex people. The archaic terms that had been used were hurtful and degrading. The SAHRC had put forth amendments to the Equality Act, adding definitions of inter sex persons that were not harmful. She added that South Africa was hailed as giving the best protection for vulnerable parties from discrimination.

Ms Cohen said that the mandate of SAHRC was to promote human rights to the best of its capabilities. It was also important to consider the internal issues within the SAHRC. Incoming commissioners were to be fully briefed on the most current operations of the Human rights commission.

Ms Cohen noted that the SAHRC had been waiting for a long time for amendments to its Act. At the last change of commissioners, it was announced that the new amendment was going to Parliament, but it was considered to be beneficial to try to put through all amendments simultaneously.

Ms Cohen commented that in terms of the objectives for the proposed amendments, it was important that the SAHRC was empowered to champion the rights of citizens abroad. The SAHRC’s mandate was limited to acting inside the border, which was a limitation. There were some special cases that needed review, such as the SAHRC mandate for someone granted refugee status in South Africa, and how such people’s rights could be actively championed.

Ms Cohen said that there was a need for clarity whether SAHRC was mandated to champion for the rights of persons outside of its original, domestic jurisdiction. If it was decided that the SAHRC was to ‘actively champion’ the rights of South African citizens abroad, then it would be forced to look at international courts, like the international tribunal, in matters such as the Caster Semenya one. It must be made clear what was meant by ‘actively champion’.

Ms Cohen addressed the question of how South Africa dealt with human rights matters abroad. She said that the SAHRC was approached by people from outside Africa. The SAHRC had previously investigated these matters but was impeded by its lack of international recognition. She added that it had received complaints that Department of International Affairs and Cooperation was not doing anything for family members in foreign sovereignties, who complained that this Department was not carrying out its responsibilities.

There was no obligation for other foreign bodies to respond to the Commissions like CGE and SAHRC, so human rights issues abroad only served as a platform for debate. Although the SAHRC had the power to subpoena people, it did not have the necessary legal powers to achieve real results. Human rights championing depended on the legal proceedings practices of other countries, which further complicated the matter. SAHRC’s lawyers would not have had the standing to appear in court abroad. If SAHRC wanted to appear in an international court to champion rights, it needed training and resources, because this would be enormously expensive. The financial realities, including cost of travel, accommodation, and so forth, of these procedures were significant.

Once the international tribunals were identified where the SAHRC ought to be, SAHRC would have to systematically look at the constitutive acts of those tribunals in order to see where they could assist.

Ms Cohen commented that the African Court proposals were as yet at an early stage so no bodies could approach this court. This would be an important development for establishing a basis to promote the protection of human rights. 

A comparative study had been made regarding the initiative of international championing of human rights by the SAHRC’s international counterparts. The Canadian Human Rights Commission seemed to motivate through its provisions that it was obligated to assist its citizens abroad; but New Zealand and Australian Commissions did not share the same provisions. Ms Cohen suggested that the SAHRC should meet with its Canadian counterparts, to find out how their mandate had worked. Kenya and Uganda’s founding acts stated that their Commissions should not investigate matters between their own and foreign governments or international organisations.

Ms Cohen added that an important role player in the discussion would be the Department of International Relations and Cooperation, to find out where all the issues fitted together.

With regard to territorial issues and business, it was also important to consider what kind of actions would be taken against trans-national South African businesses that violated the human rights of foreign citizens abroad.

Ms Cohen concluded that it would be a bad idea to rush into legislation without exploring every aspect of it. She said that if that the SAHRC was given legislative power then this might create an unworkable expectation regarding its capabilities to solve all issues.

Ms Mentor thanked the Commissions for the spirit with which they approached the proposed amendments. She commented on her interactions with international media, who had felt that South Africa set the standard for human rights. 

Mr A Ainslie (ANC) said that the proposal was to change the law, to give the Commissions more power, which might force them to be less passive. South Africans should, in his opinion, take their human rights with them, and he believed that the Commissions should have worked internationally with NGOs when there were human rights violations. A private legal firm was acting for Caster Semenya, not one appointed by the Chapter 9 institutions. He believed that they should have become more active.

The Chairperson asked if the Department of Justice was busy with a more holistic amendment.

Mr Labuschagne said that this Committee had the power to instruct the Department to investigate amendments in a holistic way if it deemed this necessary.

Mr J Selau (ANC) said that many of the delays experienced could be ascribed to waiting for finalised amendments. He added that the entire matter was linked with international relations. A full presentation on human rights would have touched on international issues. These could not be addressed by amending only two pieces of legislation. He asked what other pieces of legislation would have to be amended.

The Chairperson clarified that the debate over where the processes would be taken was irrelevant. The Committee should focus only on the issues being discussed.

Ms Mentor pointed out that South Africa was well-regarded, internationally.

The Chairperson said that part of the responsibility of the Commissions was to bring forward any proposals to amend legislation to related departments. He asked if they had done that. 

Mr Keketso said that there were a number of amendments that CGE had in mind. However, it had decided to deal with its own internal issues before bringing those forward.

Ms Cohen noted that there had been frequent communications between SAHRC and the Department of Justice.

The Chairperson thanked the Honourable Mentor and excused her from the meeting.

Mr Ainslie questioned the merits of the CGE’s presented statements, and asked for clarification what its views were on the proposed amendments.

Mr Keketso said that the issue related to differential applications of the amendments. The proposal to amend these two Acts had implications that first needed to be explored.

Ms M Twala (ANC) asked who was responsible for the financial aspect of implementation of the proposed amendments.

The Chairperson said that it depended on which body put them forward.

Ms Twala asked who would sponsor this case.

The Chairperson said it would be sponsored by Parliament if the Committee agreed with the proposal.

Ms Twala added that the financial cost of the implementation should not be an issue.

Mr Keketso said that Ms Twala had made a good point and began to outline the difficulties that the CGE faced from a financial point of view.

The Chairperson stopped him, and clarified that this was not to the point, as the Committee was merely discussing who would sponsor the proposed amendment of the legislation.

Mr Keketso said that implementation of legislation required funding. Without funding, the CGE would not be able to fulfil the mandate.

The Chairperson said that it was the responsibility of the Commissions and any other body to raise issues, such as lack of resources, to Parliament, who would then be responsible for making sure that funding was forthcoming.

Ms Twala said that it was for this reason that Parliament had hearings to address these types of issues.

Ms Yvette Abrahams, Commissioner, CGE, said that the proportional funding requirements for their Commission were very humble compared to other institutions. She hoped that this proposal would not have a heavy burden on financial resources.

The Chairperson released the Commissions from the meeting.

The Chairperson then asked the Committee to consider the presentations and proposed amendments. He asked what the final decision would be.

Ms J Sosibo (ANC) believed that the Department of Justice should be permitted to continue with its work on the proposed amendments, without further intervention from this Committee.

Mr A Ainslie agreed with Ms Sosibo. There was no need to go through with a parallel process.

The Chairperson confirmed that the Committee was in agreement over the course of action. He said that it was prudent to put into place a timeframe to accomplish their report for presentation, for proper approval.

The Chairperson noted that other matters not discussed in this meeting would stand over to the following meeting. This would include the marketing strategy and the languages that the Committee could use, which could help promote awareness of this Committee that was not well recognised even within Parliament.

The meeting was adjourned.


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