Accession to the African Charter on Democracy: briefing

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International Relations

09 November 2010
Chairperson: S R Magau (ANC)
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Meeting Summary

The Senior Researcher at the Human Rights Commission briefed the Committee on the African Charter on Democracy, Elections and Governance.  The Charter had been in existence since 2007 but had not yet been ratified by the South African Parliament.  The briefing included a detailed explanation of the pertinent Articles included in the Charter and listed the reasons why the Charter should be ratified by South Africa.  The Commission commented on the late reporting of South Africa in the past and emphasised the need for the country to ensure that reports required in terms of the Charter were submitted timeously.  The Commission recommended that a singe Government entity was made responsible for the issuing of the reports.  The Commission recommended that the Charter was ratified as soon as possible.  The Commission suggested that South Africa took a leading role in ensuring that the Charter was ratified by other countries on the African continent.

Members agreed with the recommendations made by the Commission and suggested that the matter was placed on the SADEC agenda.  Members agreed that the matter concerning the late rendition of reports had to be addressed.  Members undertook to contribute to the sharing of experience at events attended by delegates from other African countries.

The Committee approved the recommendation that the Charter was ratified by South Africa.

Meeting report

Briefing by the Human Rights Commission (HRC) on the African Charter on Democracy, Elections and Governance
Ms Judith Cohen, Head of Programmes, Human Rights Commission, said that six countries in Africa had already ratified the Charter, and it would be great if South Africa could be the seventh one. The six countries were namely: Ghana; Lesotho; Uganda; Sierra Leone; Ethiopia; and Mauritania. 15 ratifications were needed for the Charter to come into being. The aim of the presentation was to brief Members of Parliament (MP) on the implications of ratifying the Charter and the possible roles the MP’s could play. She said that essentially the decision to ratify was a political decision.  

Anthea van der Burg, Senior Researcher, Human Rights Commission, presented the briefng. South Africa had showed its commitment by ratifying the African Charter on Human and People’s Rights (ACHPR) in 1996, the African Charter on the Rights and Welfare of the Child (ACRWC) in January 2000 and the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa in December 2004. The latter Charter had significantly increased the rights of women and vulnerable groups.

The participation of civil society in the drafting of the document was unique. There was a difference between a Charter and a Treaty Body. A  Charter looked at the rights of people in Africa whereas a Treaty Body looked at enforcement and the implementation of rights in various countries as well as the reporting of rights by State partners. There were 29 signatories and three depositors to the African Charter on Democracy, Elections and Governance (ACDEG). The Charter was drafted in January 2007 and the briefing to the Committee provided an opportunity to discuss the reasons why South Africa should ratify this particular instrument.

The main body of the Charter focused on free and fair elections. It was important to consider the Charter together with other international instruments. The Charter included mention of civil and political rights, freedom of expression and freedom of movement. South Africa had ratified the International Convention on Civil and Political Rights (ICCPR) but the discussion around civil and political rights remained unresolved until South Africa ratified the International Convention on Economic, Social and Cultural Rights (ICESCR). The ratification of the Charter would demonstrate a commitment to democratic governance by South Africa. Another important aspect was the participation of South Africa in the African Peer Review Mechanism (APRM). South Africa’s progress was reviewed by other countries on the African continent.  The Charter complemented the APRM.

The presentation outlined the prominent provisions of the Charter.  Article 8(2) dealt with vulnerable groups and required the State party to “adopt legislative and administrative measures to guarantee the rights of women, ethnic minorities, migrants, people with disabilities, refugees and displaced persons and other marginalized and vulnerable social groups.”  South Africa had already ratified the Convention on the Rights of Persons with Disabilities (CRPD), the Convention on the Elimination of Racial Discrimination (CERD) and the Convention against Torture (CAT).  There were obligations attached to the ratification of international instruments and South Africa was required to domesticate the African instruments in terms of its own legislation and enhance its programmes and policies in accordance with the articles contained in the instrument. South Africa had not ratified the International Convention on the Rights of Migrant Workers (ICRMW). This was an important convention as it dealt with issues relating to labour brokers, migrant workers and child labour. The ratification of this Convention, the International Convention on Forced Disappearances (ICFD) and other protocols dealing with vulnerable groups needed to be placed on the agenda as a matter of urgency.  Article 8(2) does not include children because the main body and spirit of the Charter dealt with free and fair election processes and children were not required to vote.

The next provision included in the Charter concerned the strengthening of the organs of the union. In the past, State parties were accused of not paying their subscription fees. In many cases, countries were making progress with ratifying African documents.  South Africa could share expertise with other countries in Africa. South Africa played a reporting role as well.  Parliament had an oversight responsibility and a more significant interaction to ensure that the treaties were implemented and the reporting responsibilities were carried out was necessary.

Article 9 of the Charter dealt with social and economic policies and required that “State parties undertake to design and implement social and economic policies and programmes that promote sustainable development and human security”.  This implementation of Article 9 might require a review of certain policies and the programmes of the relevant Government departments and the ratification of ICESCR.

Article 12 dealt with the culture of democracy and specified steps that could be useful for the Committee to consider how State parties implemented programmes and carried out activities designed to promote democratic principles and practices as well as consolidating a culture of democracy and peace. The Article considered the strengthening of political institutions to entrench a culture of democracy and peace as well as promoting good governance; created conducive conditions for civil society organisations to exist and operate within the law; looked at the integration of civic education in educational curricula as well as the development of appropriate programmes and activities.

Article 15 dealt with public institutions like the South African HRC and the Independent Electoral Commission (IEC), which were created in terms of the Constitution for the purpose of promoting and supporting democracy. Adequate funding remained a challenge to these institutions.  Without sufficient funding being made available, democracy could not be properly supported. The relevant legislative framework needed to be in place. The Municipal Electoral Act 27 of 2000 required revision.  The Committee needed to consider the requirements of the Department of Home Affairs (DOHA) to allow the implementation of the Charter as well as the responsibilities allocated to the IEC.

Article 16 dealt with the exchange of experiences and stated that “State parties shall cooperate at regional and continental levels in building and consolidating democracy through the exchange of experiences.” The HRC queried the role of the Committee in sharing South African experiences with its African counterparts and in promoting the Charter.

Article 28 covered the inclusion of civil society and required that “State parties shall ensure and promote strong partnerships and dialogue between government, civil society and the private sector.”

Article 29 recognised the crucial role of women in development and democracy and placed an obligation on State parties to create the necessary conditions for the full and active participation of women in decision making and in the electoral process. South Africa had done well to promote the rights of women and had ratified the Convention on the Elimination of Discrimination against Women (CEDAW). Other African countries could benefit from the 50/50 campaign.

Article 49 required State parties to submit reports every two years, effective from the date the Charter came into force. South Africa had a history of late reporting to both the United Nations and on the African continent. South Africa’s initial report was submitted in October 1998 and the second report only in May 2005.  The combined the third and fourth reports were considered in December 2005. This situation was not ideal situation and a number of reports were currently outstanding. A number of programme activities with regard to legislation and policy development could occur in the period between reports. The benefits of reporting included the use of the reports as a tool to create and further human rights education and awareness; the reports could be a reference in Government planning; allowing for choices that promoted the development of a human rights culture; an opportunity to benchmark progress; an opportunity for reflection and a mechanism to share experiences and achievements.

Key recommendations for the Committee to consider included that a single Government department was responsible for coordinating reports; ensuring that the information contained in reports was correct and comprehensive; that reports were submitted timeously; adequate training to be provided to the relevant Government departments; that reporting should be thorough with limited additional reports being necessary; the ratification of the Charter; the use of the Charter as a tool to ensure democracy and the use of the Charter as a tool for evaluating constitutional democratic values.

The HRC attempted to demonstrate how the Charter complimented, strengthened and enriched what was already in place in South Africa. The Charter was promotional in nature. The Committee might require a more political discussion and consider the message that Parliament wished to send to the rest of Africa concerning issues of democracy, elections and good governance. The African Charter promoted democratic governance and the holding of elections on a regular basis and provided African solutions to African problems. A culture promoting human rights did not happen overnight but was an ongoing work-in-progress.  The HRC appealed to Government departments to consider how the Charter could be taken on board and to what extent it influenced the decisions, programmes and planning of the Department concerned. The HRC had attempted to demonstrate that the African Charter was a tool that could be utilised by Parliament and by the country to assess its own performance and the progress made in realising the ideals set out in the Constitution.

Discussion
Mr K Mubu (DA) found it strange that South Africa had not ratified the ICRMW as the country was the destination of many migrant workers from all over the African continent.  Likewise, that legislation on the use of torture had not been promulgated, particularly in the light of the history of the country.  South Africa was considered to be a leading light on the continent in a number of ways and participated in the APRM process.  South Africa was serious about democracy, human rights and the rule of law. Members had the opportunity to travel all over the continent and were frequently commended by other African countries on the leadership demonstrated by the country.  Certain South African institutions were used as a benchmark, for example the IEC. He was concerned over the exclusion of civil society from participation in a number of endeavours. There were a number of initiatives providing opportunities for civil society participation. South Africa had good governance structures, for example the HRC.  He suggested that the Committee proceeded with the ratification of the Charter.

Ms L Jacobus (ANC) said that the Portfolio Committee on Labour was currently considering the Labour Relations Amendment Bill and the issues concerning labour brokers and migrant workers were under discussion.  The Pan African Parliament was a vehicle that could be used to share experiences.  She asked if the HRC had investigated other alternative mechanisms as the Committee was not in a position to engage with other parties. A recent conference arranged by the Pan African Parliament had dealt with the concept of an e-Parliament, which was a creative way of interacting with other member States. With regard to the issue of reporting, she said that South Africa had a strong culture of encouraging participation by non-governmental, civil society and sector organisations before reports were released.  It was possible that reports were released late because of the time needed to engage with all the stakeholders. She observed that many African countries did not abide by the Charter.  She suggested that more thought was given to establish a mechanism that would enforce the Charter.

Mr S Mokgalapa (DA) agreed that the Charter should be ratified by South Africa.  The Charter encompassed good principles and was supported by many senior Members of Parliament.  The most significant challenge was to ensure that the Charter was adopted by all African countries.  He proposed that the Charter was ratified.

Ms F Hajaig (ANC) said that the problem was not necessarily the ratification of the Charter but rather the domestication into law. She agreed that the Charter was an excellent document but it was unclear how the document could be used to promote a culture of good governance, democracy, electoral practice and equality. She supported the ratification of the Charter.  She felt that South Africa had a duty to encourage other countries to follow suit. The issue had already been debated at the Pan African Parliament and should be discussed at SADEC.  All 14 members of SADEC needed to ratify and domesticate the Charter into their respective domestic law. A media campaign should also be mounted to reach out to civil society. The South African Broadcasting Corporation (SABC) should be brought on board and radio was very powerful tool to reach people in remote areas. One of the reasons why the Charter on migrant workers had not yet been ratified was that a register had not yet been established.  The Department of Home Affairs (DOHA) had not performed well since 1994 and was only recently showing signs of improvement.  The Charter was not in conflict with the Constitution of South Africa and there was no reason not to ratify it. The HRC could play a role in ensuring that civil society understood what the document stood for and wanted to achieve.

Ms T Sunduza (ANC) observed that the general public was not well-informed on international relations issues. South Africa was viewed as a “big brother” by the rest of Africa countries. The Charter promoted good governance, which would transform Africa and remove the stigma the continent suffered under. She agreed that South Africa should lobby the other members of SADEC to ratify the Charter.

Ms Cohen observed that the Members of the Committee appeared to understand the Charter very well.  She advised that the HRC was involved in a number of processes that considered human rights issues at the international as well as the regional levels.

The Chairperson commented that the Charter had been inexistence since 2007 but was only now submitted to the Committee.  The Office of the State Law Adviser had confirmed compliance with domestic legislation. The matter had been raised with the Department on previous occasions.  He agreed that South Africa needed to set a good example to other African countries and the opportunity would be lost if there were further delays in ratifying the Charter.  Members of Parliament represented the people of South Africa and had to ensure that civil society was engaged on the Charter. The Committee would have opportunity to share experiences with other delegates at international conferences.  He agreed that the issue of reporting needed to be considered.  The reports should be submitted on time in order to preserve the country’s reputation.  Members were responsible for holding Government accountable in respect of matters of compliance and the advancement of the principles of treaties.

Mr Mokgalapa proposed that the Committee recommended the ratification of the Charter. Ms Sunduza seconded the proposal and there were no objections from the other Members.  The Committee recommended that the African Charter on Democracy, Elections and Governance was ratified.

The Chairperson thanked the delegation from the HRC for the presentation and the Members for their comments and input.

The meeting was adjourned.


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