South African Human Rights Commission on challenges around submission of National Human Rights Reports to International Organisations & possible role of Parliament in this

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International Relations

14 September 2010
Chairperson: Ms Magau (ANC)
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Meeting Summary

The South African Human Rights Commission (SAHRC) detailed the conventions which South Africa had signed onto and ratified and those it had yet to do so. The Commission noted that there were several areas in which the government had not reported to the United Nations timeously. There were several overdue periodic reports by government such as reports for the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Convention on the Rights of the Child (2nd and 3rd reports) and Convention on the Rights of Persons with Disabilities (CRPD) (due in May of this year). The Commission highlighted ways in which Parliament could assist with the process of ratifying outstanding conventions and assist in ensuring that government bodies carried out their work in submitting reports timeously.

The SAHRC also spoke about torture, xenophobia, the inevitability of migration due to the deteriorating nature of economies in the region and the growth of the South African economy.

Queries were raised about legislating against hate crimes and the criminalising of torture and who was responsible for developing policy in those two areas. Comment was passed on the usefulness of the SAHRC presentation and the need for members to do more in assisting in South Africa meeting its international human rights law obligations.

Members asked what the SAHRC did to educate ordinary citizens and whether the SAHRC worked with civil society organisations. Comment was made on coordinating and consulting more closely with the Department of Home Affairs to deal with issues of migration. There was comment on incorporating international human rights law into the country’s education system.

Meeting report

South African Human Rights Commission (SAHRC) presentation
Ms Judith Cohen, Head of Parliamentary & International Affairs Programme: South African Human Rights Commission spoke about the Commission’s work specifically looking into xenophobia and South Africa’s international human rights obligations. 

The Commission was mandated to produce human rights policy papers and give a Human Rights Development Report amongst other duties in keeping with its foundational purpose. The Commission was further mandated to lead a promotion of respect for and a culture of human rights, to provide leadership and guidance in the achievement of the Commission through the facilitation of the SAHRC agenda at international, regional, national and provincial levels. The Commission strove for the promotion of the protection, development and attainment of human rights and the monitoring and assessment of the observance of human rights. It sought to advance human rights through legislation monitoring and assessment of national compliance to regional and international human rights treaties.

Ms Cohen noted some of the recommendations made by the UN’s OHCHR Committee on the Elimination of Racial Discrimination (CERD) in the aftermath of the xenophobic attacks of 2008. Among these, CERD recommended that the South African state strengthen its existing measures to prevent and combat xenophobia and prejudices which led to racial discrimination, and provide information on the measures adopted with regard to promoting tolerance, in particular in the field of education and through awareness-raising campaigns, including in the media. CERD further recommended that South Africa make allowances for migrant workers and ratify the International Convention on the Protection of the Rights of All Migrant Workers and members of their families.

The Commission highlighted the nine major conventions of the United Nations:
1. International Covenant on Civil and Political Rights (ICCPR) (1966) and its Optional Protocol. SA Ratified

2. International Covenant on Economic, Social and Cultural Rights (ICESR) (1966). SA signed not ratified
3. International Convention on Elimination of All Forms of Racial Discrimination (ICERD) (1965). SA Ratified
4. Convention on Elimination of All Forms of Discrimination against Women (CEDAW) (1979). SA Ratified
5. The Convention against Torture and other Cruel, Inhuman or Degrading Treatment (CAT) and its Optional Protocol (OPCAT) (1984). SA Ratified CAT & signed OPCAT

6. Convention on the Rights of the Child (CRC) (1989). SA Ratified
7. International Convention on the Protection of All Migrant Workers and Members of their Families (ICRMW) (1990) SA not signed or ratified
8. Convention on the Rights of Persons with Disabilities (CRPD) (2006) SA ratified

9. International Convention for the Protection of All Persons from Enforced Disappearance (ICPED) (2006) SA not signed or ratified

The SAHRC was held in high esteem by the United Nations and had an “A” status at the UN Office of the High Commissioner on Human Rights. South Africa was mandated to submit to a universal periodic review in which it reported to the United Nations on the progress it had made in various areas of human rights.

The Commission noted that there were several areas in which the government had not been able to report to the United Nations timeously. There were several overdue periodic reports by government such as reports about the
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Convention on the Rights of the Child (2nd and 3rd reports) and Convention on the Rights of Persons with Disabilities (CRPD) (due in May of this year). Submitting reports timeously was important because it:
• Demonstrated the State’s commitment at an international level, amongst peers, of its commitment to human rights
• Demonstrated to citizens that the State is committed to human rights and is willing to be accountable at an international level
• Provided opportunities to reflect on the promotion, protection and realisation of rights within a country
• Provided opportunity to benefit from advice through the recommendations of international experts.
• Provided opportunities for technical assistance to be provided to the State through the UN mechanisms

The Commission provided comment on South Africa’s rate of submitting reports to the UN on human rights. Some of the problems surrounding South Africa’s poor report submission rate were a lack of knowledge, awareness, capacity and experience. A lack of alignment of departmental reporting systems to UN reporting requirements, poor prioritisation of reporting and follow-up and the over-dependence of the South African Constitution when referring to human rights laws which had international precedent. The exclusion of South Africa from the international community prior to 1994 was also a contributory factor.   

Ms Cohen spoke about the inevitability of migration and the necessity for the development of laws which dealt more effectively with migrants. The report further highlighted that there was no specific legislation criminalising torture and that it was important to establish such legislation as torture was a growing problem across the globe. Specifically the Commission took issue with the necessity to protect non-citizens who were detained and had no rights due to their lack of official documentation.

The Commission provided recommendations on how parliament could assist in the field of human rights and ensuring that government did its work properly concerning that area.
Parliament could assist in persuading the Executive to ratify outstanding Conventions, for example, the International Covenant on Economic, Social and Cultural Rights (ICESR) signed in 1994:
A 2007 report by the National Assembly and the National Council of Provinces Parliament of South Africa, Joint Coordinating Committee on the African Peer Review Mechanism, stated that there “was no apparent reason for the country’s failure to ratify the Covenant because it imposes no greater duties than the Constitution.” There was a civil society campaign to ratify Optional Protocol to the Convention against Torture (OPCAT) and International Convention on the Protection of All Migrant Workers and Members of their Families (ICRMW).

Furthermore Parliament could:
-
Exercise oversight in order to determine the reasons and causes for South Africa’s delays in complying with its reporting obligations.
- Engage with the reports that are prepared for the Treaty Body Committees
- Ensure that the previous recommendations of the Treaty Bodies are addressed.
- Continuously exercise oversight in respect of recommendations.

Discussion
Mr S Mokgalapa (DA) said that the presentation had given members food for thought. The report highlighted the importance of parliamentary participation in promoting human rights. The report was an indictment on parliamentarians as it highlighted that more could be done in the area of human rights. The onus was on parliamentarians to follow up on some of the issues which had been raised in the report. He asked what the challenges were that the SAHRC faced on a daily basis. He asked what extent the SAHRC interacted with civil society organisations and what extent they took on comments which were made by such organisations.

Ms Cohen responded that the SAHRC faced many challenges including working with a budget of R80 million, resource and staff shortages (130 staff members currently), one legal officer and 1 education adviser per program (9 programs currently in the SAHRC). She said that the Commission could not reach every village/town due to staff shortages but more could be done to work smartly so as to improve the Commission’s outreach. She said that the SAHRC interacted and worked with many other civil society organisations and valued the various input it received from such organisations.

Dr G Koornhof (ANC) thanked the SAHRC for its presentation. He asked which department should be tasked with the criminalisation of torture in South Africa. He commented that the SAHRC should play a proactive role in initiating legislation on issues such as criminalising torture. The migration issues noted in the report required regional cooperation in order to prevent problems arising from illegal migration. He raised the issue of a report which was compiled by Mr Obed Bapela, House Chairperson: Committees, Oversight and ICT on xenophobia and how it was not in the parliamentary record. He asked who was following up on the SAHRCs report on xenophobia. He asked which department was responsible for developing hate crime legislation and where that process was.

The Chairperson replied that the report by Mr Bapela was provided to the Committee and that if Dr Koornhof sought a copy, the parliamentary staff would be able to assist him. Ms Cohen responded that the report on xenophobia was being dealt with by the Department of Justice and Constitutional Development. She said that legislation criminalising torture was very necessary and had initially been introduced in 2002/2003 but little had been done to formalise the legislation. She said that cases of torture were not unique to South Africa and did occur across the globe but the important first step was in tabling legislation specifically addressing the issue.

Dr Koornhof said that he had a copy but it had not been tabled officially in parliament and he wanted to know why.

Ms T Sunduza (ANC) thanked the SAHRC for its presentation and asked what the Commission did in civil issues involving South Africans. The Commission seemed to be active in times of crisis but not so active on the ground assisting with problems that led to incidents such as the xenophobia attacks of 2008. The Commission seemed to side more with asylum seekers rather than citizens when issues of human rights abuses occurred. She commented that it was important that Asylum seekers be educated on their rights. She asked how members could assist the SAHRC in carrying out its duties/mandate.

Ms Cohen replied that in the aftermath of the xenophobic attacks of 2008, asylum seekers were the most affected thus the SAHRC had an obligation to offer assistance to them, they were not necessarily favouring them over disaffected citizens. In the long term the Commission would seek to coordinate with civic groups and religious organisations to work better across more communities and prevent instances where xenophobia broke out. She added that it would be useful in future if people started using international human rights law as a reference point as opposed to the South African Constitution when it came to matters of human rights. She said that more education on international law governing the area of human rights was necessary to improve people’s knowledge of that area.

Ms T Magama (ANC) thanked the Commission for its report and commented that the report took a legalistic approach to xenophobia and all other problem areas. He was of the view that in dealing with xenophobia, it was important to address the root causes and not merely deal with the problem itself. He commented that the weaknesses of the country’s immigration system needed to be addressed to prevent future occurrences of xenophobic violence outbreaks.

Ms Cohen responded that the root causes for xenophobia were well known and established but that the challenge was in addressing those issues. She said Parliament could play a role in working to improve services provided by the Department of Home Affairs as the registration process used by the Department was inadequate and flawed. She said that it was important for both asylum seekers and the government for registration and administration of migrants to be improved.

Mr M Manana (ANC) thanked the SAHRC for its informative report and commented that before awareness of migration and xenophobia was created, consultation with the Department of Home Affairs was necessary. People on the ground were aware of the weaknesses in the country’s immigration process and that often sparked mistrust for the veracity of a foreigner’s documentation and status. Migration and immigration needed to be dealt with before other issues could be addressed and that engagement with the Departments of Defense and Home Affairs would be necessary in order to achieve that.

Ms B Gxowa (ANC) asked what treaties translated into for ordinary citizens on the ground. She said that parliamentarians had a special role to educate citizens about treaties and issues affecting them. She asked which structures the SAHRC was working with in terms of educating ordinary citizens about issues affecting them. She suggested that the SAHRC visit people on the ground to get a view of the problems affecting them.

Ms Cohen said that it was difficult for the Commission to reach every village and town but that the Commission did interact with local councillors of remote areas in an attempt to improve the education of the residents of that area in the field of human rights. She said that in future, the Commission would seek to develop an induction policy educating elected councillors on human rights issues and through that improving knowledge around human rights. She said that the Commission was working with civil organisations such as Black Sash to try and make conventions more accessible to ordinary citizens. She said that it would be important to mainstream international human rights law in future so that more people were educated in the area of human rights.

Mr Manana commented that he thought the SAHRC should be proactive in assisting the Department of Home Affairs in sorting problems of illegal migrants and that together with parliamentarians they should work together to alleviate problems around human rights.

The Chairperson thanked Ms Cohen for her presentation and input. She said that the SAHRC was working in a complex environment and needed all the support it could get from stakeholders and concerned parties. She said that the foreign policy the Committee exercised oversight over was underpinned by amongst other things a respect for human rights and international law. She said that a lot of work needed to be done in parliament to assist in the field of human rights. She proposed a joint sitting with Home Affairs, Justice and Constitutional development and the SAHRC in order to look at the proposals made by the SAHRC report on xenophobia and the report by Mr Bapela. She added that the Executive needed to be interrogated more closely with regard to human rights work. She further said that members should do more to educate their constituents on the importance of acknowledging human rights.

Note: Due to bereavement in the family, Mr T Nxesi (ANC) the Chairperson of the Committee was unable to attend the meeting. Ms R Magau was appointed Acting Chair.

The meeting was adjourned.

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