International and Regional Human Rights Obligations: SA's outstanding reports - input by SAHRC

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Justice and Correctional Services

12 September 2014
Chairperson: Mr M Motshekga (ANC)
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Meeting Summary

Commissioner Janet Love of the South African Human Rights Commission, briefed the Committee on the respective roles of the Committee and the Commission regarding international instruments generally and the reporting obligations which attach. She provided an overview of the international instruments under both the United Nations and African Union systems and explained the reporting process and players involved. She gave a summary of the reporting record of South Africa, which was very poor with several reports outstanding under many individual instruments, such as the International Covenant on Civil and Political rights for which South Africa still has not submitted its first report. It was noted that South Africa plays an active role in the drafting of these instruments, yet less active signatories have perfect reporting records.

Members discussed the need for coordination amongst government departments on their reporting responsibilities and greater communication between the Commission and Parliament. A workshop with all stakeholders to deal with reporting concerns was welcomed. Concern was raised about the affordability of the obligations which are assumed through the ratification and domestication process. The Commissioner said in reply that the true concern ought to be the affordability of our own laws.

The SAHRC also raised the concern that a regional LGBTI rights seminar for Africa had not yet been undertaken by South Africa as promised to the United Nations in March 2014, despite their reminders to the relevant departments. The Chairperson commented on LGBTI rights, that Africa takes a different stance from many other powers and a space needs to be made for Africa to express its views. It needs to be understood what Africa is saying and why and what the reasons are for these other positions that are held. If a view is imposed, then people will simply ignore it. The same applies to the justiciability of socio-economic rights and the capacity of the country needs to be looked at to avoid a meltdown. He concluded that all affected parties need to be involved in pursuing solutions to the problems and communication needs to flow between the Committee, the Chapter Nine Institutions and government departments.

Meeting report

The Chairperson welcomed the South African Human Rights Commission (SAHRC) and said that the presenter should focus on the pressing matters as the presentation is detailed. He commented that most of the presentation was dedicated to the UN instruments, rather than the regional instruments. He also noted that the SAHRC Chairperson had written to the Committee requesting an engagement with Chapter 9 institutions supporting democracy, rather than calling for mere written submissions. This was consequent to the budget vote briefings and since, where one had already seen briefings on mandate overlaps.

South African Human Rights Commission (SAHRC) briefing
Role of the SAHRC
Ms Janet Love, SAHRC Commissioner, said that SAHRC has a certain role regarding reporting obligations and the Committee was aware of this. What may need further clarification are the Paris Principles, which lead to the SAHRC being recognised as a national human rights institution representing these Principles and provide the SAHRC the reporting and engagement opportunities at the international level.

The SAHRC’s involvement is both at a broad level with reporting and interactions and at specific treaty body level engagements. The importance of the SAHRC’s engagement is to not only demonstrate a commitment to human rights and reflect on South Africa’s progress, but also provides an opportunity to learn from others in the field and receive technical assistance.

Role of Parliamentary Committees
The constitutional basis for the Committee’s role is sections 231-233. States can indicate support at international exchanges, however for the agreement to be legally binding, it must be ratified by Parliament and by domestication of legislation. Once an international agreement becomes ratified and domesticated, then Parliament has an oversight role over the adherence to the assumed obligations by ratifying the signature of international instruments. This oversight includes increasing general awareness around international obligations and encouraging the ratification of instruments which South Africa ought to in light of the Constitution. Monitoring of compliance is important and the Committee should ensure that government departments comply with obligations and that any new legislation is compliant with international law.

United Nations Human Rights System
Ms Love said this is only one component of South Africa’s international obligations, which also include regional and sub-regional elements. South Africa is also involved in bodies which are not strictly part of the UN system but are on an international level, such as the World Trade Organisation. It is important to differentiate politically binding acts, such as declarations at various fora, from legally binding acts, such as parliamentary ratification of treaties or covenants.

The Universal Declaration of Human Rights is the founding document for subsequent international instrument and is the basis for the UN charter and treaty body systems. Charter bodies promotes human rights in all UN member states. Treaty bodies monitor compliance with a particular treaty of only those countries party to that treaty. Treaty bodies consider reports from state parties as well as other bodies on that state's compliance with the treaty. The distinction is reflected in the regional context and the importance of it is that the charter system sees state representatives who are independent, but accountable to their states involved in these structures. The treaty body system is based on nine different human rights treaties and is staffed by independent experts. Under some of the bodies, these experts have security of tenure to insulate them from political pressure. This is to give the UN independent information on implementation and challenges; also to conduct inquires and take complaints.

Ms Love said the reporting cycle is sometimes spread over two years and at times over four years. The cycle is started by a state submitting a report, which is then interrogated by the treaty body. The State then responds to the concerns raised, the state and treaty body meet to finalise the submission and the treaty body issues concluding observations which are to be followed up in the next report. The follow up on the recommendations is where the corrective interventions are supposed to be made by the state and this is where Parliament is able to monitor these interventions. Lastly, there should be opportunities for civil society and institutions supporting democracy to make formal contributions during the reporting process.

Overview of Treaties
Summaries of the content of the treaties were provided in the briefing document. Ms Love highlighted that there are overlaps and cross cutting issues between the treaties. This is relevant to reporting and oversight. South Africa is party to many treaty bodies over a range of focus areas and South Africa often plays a leading role in the drafting process. Aside from conventions there are optional protocols, which various state parties feel is critical but is not included in the main document. For example the Optional Protocol on the Convention against Torture, which sets up a national monitoring mechanism. Although ancillary to the main treaty, optional protocols need to be approached separately for reporting and monitoring purposes.

South Africa has not yet ratified the International Covenant on Economic, Social and Cultural Rights, 1966; the Optional Protocol on the Convention Against Torture; International Convention on Protection and Promotion of All Migrant Workers and Members of their family, 1990; and International Convention on Protection and Promotion of All Persons from Enforced Disappearance.

It has ratified the International Covenant on Civil and Political Rights (ICCPR) 1966; the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 1965; International Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1979; Convention Against Torture, and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) 1987; Convention on the Rights of the Child (CRC) 1989; and International Convention on the Rights and Dignity of Persons with Disabilities (ICRPD).

African Regional Human Rights System
Ms Love said that there were two critical issues that need to be recognised. The Organisation of African Unity established the Commission for Human and Peoples’ Rights and the African Union, when it replaced the OAU in 2002, took on the Commission, which was basically dormant. Therefore, the AU presents a set of mechanisms that is fairly young. Secondly, for these mechanisms to function it is clear that state appointed representatives and experts need to drive it. However, it has few working groups and little space for expert opinion.

Specific regional human rights instruments include: African Charter on Human and Peoples’ Rights (Banjul Charter), Protocol on the Rights of Women in Africa,  African Charter on the Rights and Welfare of the Child and the Protocol to establish an African Court on Human and Peoples' Rights to ensure compliance with the Charter. Ms Love said that at the moment the African Court is able to receive complaints from all states which are party to the Protocol; however it cannot receive complaints from non-state entities, unless a state officially writes to accept this jurisdiction. The President has indicated that South Africa would write such a letter, however this has not been done. Unless state parties accept the extended jurisdiction, the court has little scope to function.

Ms Love said that the SAHRC has been involved in working group under the Charter on the Rights and Welfare of the Child. Also it had hosted the Southern African Regional Consultation of the Working Group on Extractive Industries, part of five planned sub-regional consultations.

South Africa’s Reporting Record
Ms Love said that South Africa’s reporting record is not very good and she hoped the Committee would follow up on the outstanding reports. She wanted to illustrate that reporting is a complex matter and to make the Committee aware of the complications, so that it is armed to properly call departments to account.

First, complexity lies in the determining which department is responsible for reporting. The content of various instruments is cross cutting. She used the example of the civil and political rights implications brought about by Marikana to show how this could be relevant to the Department of Mineral Resources; however the hub for these rights would be the Department of Police. The selection of the departments is therefore critical; however departments do not necessarily want to be the reporting authority. The coordination between departments working on the same report also presents a challenge. Lastly, the selected department could be perceived as a “super department” and perhaps have to ‘nanny’ other departments.

Second, the involved departments have to give input on the report. This requires the departments to be collecting statistics and, secondly, the statistics of the various departments must correlate in order for the report to be comprehensible. The potential for coordination through the Presidency has recently come up and this will hopefully improve the situation.

The consultation and approval process also poses challenges. Once the selected department has compiled the report, then it is sent to the cluster which has to go through the potentially dense report. Further, the cluster must ensure that the revisions it wants are made, which involves calling the department officials who are to put in the additional information. Then Cabinet must approve and revise the document. Finally, the document is deposited with the Department of International Relations and Cooperation (DIRCO) for submission to the relevant body. Ms Love said that although the process seems straightforward, it is not.

Ms Love then went through the status of South Africa’s reporting on specific instruments. The reports for the ICCPR, ICERD, CAT, CRC, ICPRD, Convention on Elimination of All Forms of Discrimination Against Women and Protocol on the Rights of Women in Africa are all overdue. The initial ICCPR report is still to be submitted. Combined reports for the period since the reports were due are being processed for several of the overdue reports.

Ms Love said the Department of Justice and Constitutional Development and Department of Social Development have made great strides in the past three years. Yet the deficit persists and if the Committee does not play its oversight role, then the efforts towards compliance could be for nought. South Africa was often a leading figure in the drafting of the conventions. Some of the things South Africa takes for granted are:

Feedback on outstanding International Matters
There are target dates which have not been met. Moving on to the Covenant in Economic, Social and Cultural Rights, while Parliament has ratified the Covenant, DIRCO still has not submitted the instrument of accession necessary to complete the process. The problem of determining which department is ultimately responsible should be far less of a concern. This is especially so, considering the active role South Africa plays in the drafting, more actively than other signatories who have perfect reporting records. She also reminded the Committee that it is its decision which is not being implemented.

LGBTI and South Africa’s International Obligations
Ms Love said that South Africa has understood the importance of gender rights for some time and leading democracies in the world are only waking up to them now. In March 2014 Minister of International Relations and Cooperation Ms Maite Nkoana-Mashabane, committed South Africa to hosting a seminar on LGBTI rights in the first half of the year. Ms Love said that she did not believe the commitment was made lightly as it echoed an announcement by DIRCO, during working group meetings under a National Task Team on violence against LGBTI persons in 2011, that a regional seminar would be held. The end of the period for regional consultations is only weeks away and Africa is the only region which has not held its seminar; despite the fact that Africa is the clearest in law and practice on these issues. The SAHRC has been told the reason for this is that there is no money for it, but also received conflicting reports that departments are willing to host it on their budgets. Also questioned is why the seminar should be held here, however the difficulty is that South Africa has made a public statement that it would host it.

Discussion
The Chairperson commended the work of the SAHRC and Ms Love. He appreciated the presence of representatives from the Departments of Justice and Correctional Services, and Social Development, as Ms Love had pointed out the challenge of inter-departmental coordination. He said that uman rights awareness and knowledge of the Constitution is less than 50% according to a document he had read, therefore the question is what is the SAHRC doing in terms of its promotion mandate to combat this on the ground. He said this as it does not help to comply with international obligations, when the people here do not know of such things. He felt there was too much focus on human rights, which are individualist in nature, and the SAHRC needs to unpack the meaning of community or people’s rights, lest the individual human rights are overemphasised at the expense of groups like nation states. He said that there is a weakness in communication with Parliament, as he had not seen a SAHRC report since he had been in Parliament. If reports are submitted to the Office dealing with institutions supporting democracy (ISDs), without reaching committees then the recommendations cannot be acted upon; therefore he encouraged a dynamic relationship. On the non-performance of departments on reporting, he said that if Parliament is not appraised of the challenges then it cannot call the departments to account. The same applies to the domestication and ratification. While the SAHRC has the sole mandate as a national human rights institution under the Paris Principle, how does the SAHRC relate to other institutions supporting democracy so that a holistic representation can be made to the UN. What is critical is to encourage the participation with the African instruments, because South Africa is represented in the Pan-African Parliament and if the Committee is made aware of the challenges these can be taken forward to this institution. Lastly, he suggested a workshop could be arranged to devise a way forward with all the responsible departments’ involvement, because they are having Parliament sign documents for years yet the people know nothing of the obligations and this undermines the constitutional principles.

Mr W Horn (DA) said that while the initial remarks of the Chairperson could appropriately be saved for another day; the concluding remarks were very relevant as the Committee should be trying to expedite the filing of reports in the pipeline. Further, it should investigate why the regional consultation on LGBTI rights has not occurred, although the government had given an undertaking to do so in 2011. Committee should perhaps write to the relevant Ministers to ask them why this has not been arranged.

Ms C Pilane-Majake (ANC) said that the Southern African Development Community (SADC) protocols were also important and have not been mentioned. Advancement needs to be synergised with South Africa’s neighbours, as all these efforts are towards creating peace based on the Universal Declaration of Human Rights. As South Africa continues to ratify international instruments, it needs to decide whether this is feasible. With South Africa being ahead of all other countries in terms of human rights obligations, this lack of reporting creates a disjuncture, as it does not have the capacity to deliver on these obligations. This creates confusion and could breed a culture of entitlement, because the implications of rights need to be balanced with the context, particularly regarding the affordability. She said South African history has led to a situation where government gives as much as it can in an attempt to grant access to at least basic services and human rights. However, the superseding of responsibilities by rights is counterproductive to building a peaceful and caring society. Lastly, it was important to ensure that the SAHRC positions itself well to encourage this aim. SAHRC has indicated the enormity of the reporting task, having said the process often needs a super department. However, she wanted to emphasise the need for consultation particularly outside government so that South Africa, especially the part affected by the instrument, has ownership over the instruments, generating a coordinated approach. On the African Court, she noted Africa’s sentiment about the International Court of Justice.  The African Court ought to be looked to as a path through which these concerns, such as African leaders being tried elsewhere, can be addressed. She highlighted the importance of looking at the financial implications of ratification, especially for the Convention on Economic, Social and Cultural Rights. The Chapter 9’s need to not be over-enthusiastic with pushing for ratification or else South Africa will set itself up for failure by not taking into account the bigger picture. The context needs to kept in mind, lest the good work being done actually leads to instability.

Mr Zane Dangor, Special Advisor: Ministry of Social Development, agreed that the workshop would be a positive step. Aside from the deficit in reporting, it is important for Parliament to pronounce on the stance South Africa is to take on a rights framework for its own citizens. The Constitution places domestic obligations upon government which are far greater than all the international obligations. Therefore ratification needs to be guided by the chosen rights framework. He said that there is no common stance within government and whether there is a common stance throughout South Africa needs to be debated.

Mr Williams said that he was in agreement with Ms Love’s sentiment that there has been progress and agreed about the delays in the depositing of the reports which had been processed by departments and Cabinet, and which merely wait on depositing. He looked forward to being able to deal with these issues at the planned workshop.

Ms Love said that the Commission endorses the idea of a workshop, because questions like the SADC instruments have not been dealt with and there are other aspects which need more attention. Replying to the Chairperson, on the idea of local human rights obligations and responsibilities versus the obligations under international instruments. Echoing Mr Dangor, she said the idea of having two obligations is untenable, rather the international, regional or sub-regional obligation should only be taken up as something which is already part of the domestic law, or which ought to be part of our law. Therefore, the compliance obligations are not imposed from outside, they already exist. While some countries feel they are the standard bearers in terms of the Convention on Economic, Social and Cultural Rights, in fact South Africa’s domestic law imposes greater obligations and therefore South Africa ought not to be overly concerned with ratifying these conventions. The SAHRC would never endorse an international obligation which is not part of South Africa’s domestic law or which would not be part of policy informing future legislation.

On people’s and community rights, Ms Love replied that these are engaged in within the framework of both the AU and the UN and a key area on which this turns is business and human rights. In South Africa two positions have been put forward. Firstly, one which says that business has primary obligations; however this is not the framework of the UN. Secondly, when assets and resources are community owned, then there are obligations in legislation which require community engagement and consent, which ought to inform the use of resources in Africa for the people of Africa. Further, Africa has much to teach the world in this respect and overall she agreed with the Chairperson. On SAHRC reporting, she said they are submitted to the ISD parliamentary office, however they are also spoken of in their Annual Reports. The dynamic engagement through the workshop and presentations on the various reports could be used to bridge the communication gap. On the speaking rights of the SAHRC at the UN and the involvement of other institutions supporting democracy, the SAHRC is in complete agreement that this needs to be managed.  A mechanism for coordinating efforts in the production of reports which are submitted under the auspices of the SAHRC are in place and an example is the Commission for Gender Equality being invited to be the final architect of the report on CEDAW. The Chair of SAHRC, Judge Mushwana has indicated that a multi-partisan approach would be best, rather than the Commission forming opinions on its own. Replying to Mr Horn on the LGBTI consultation which was due to take place, she said there was no date set as of yet. However, in the upcoming meetings a date would be set and the feedback would be required by the end of the year, although the date was initially September. Replying to Ms Pilane-Majake’s concerns about the affordability of international instruments, she said the true concern ought to be the affordability of our own laws. On the African Court and the International Criminal Court (ICC), at the moment the African Court has jurisdiction over civil matters only and the expansion of its criminal jurisdiction is being debated in Addis Ababa. The ICC is the only international criminal as the SADC Tribunal is currently suspended.

On Ms Pilane-Majake concern about speaking rights at the UN, Ms Love responded that consultation is done, but the Chairperson’s question was around speaking rights specifically for the other Chapter Nine Institutions and the problem being their not having an opportunity to speak. There is consultation on reports, but this had not addressed their ability to speak at the UN. On the affordability question she was not concerned with the affordability of domestic law, rather the question was whether the SAHRC was concerned with the affordability for South Africa, specifically to alert people of the implications of the ratification of the particular instrument. The concern is not just affordability, but also the capacity for implementation needs to be considered.

Mr Horn asked about the letter written to the Minister and would like to know when it was written so that blame can only be apportioned if appropriate         .

Ms Love clarified that speaking rights would be exercised under the auspices of the SAHRC and it has given other institutions the opportunity to address the UN. Therefore, it is not only consultations and the drawing up of reports together. Secondly, the SAHRC does not deal with ratification this is Parliament’s responsibility and therefore the responsibility for the implications of such Acts. Lastly, the letter was written on the 7 July.

The Chairperson said that the discussion is going in the right direction. Further, he was aware of a fund called the Foundation for Human Rights and this was used for channelling international funds in addition to the budgeted funds for the institutions supporting democracy. Therefore, there is money to do constitutional literacy and this could help deal with the mentality of entitlement brought up my Ms Pilane-Majake. As this could educate people about citizen’s rights and the concomitant responsibilities. These issues need to be discussed during the workshop. The approach should not be blind promotion of socio-economic rights, without taking into account progressive realisation, because this would be a demand beyond what government can afford. The Chairperson said that Africa has many problems and if education is neglected or improperly implemented then the seeds of destabilisation could be sown. Also, it is critical to encourage education about a variety of rights including the right to religion, belief and opinion; so that an ethos of tolerance can be stimulated and South Africa has the opportunity to lead this process throughout Africa. On consultation, he said that it is important for consensus to be reached, particularly in government, before there is representation at UN level, otherwise the lack of unanimity could lead to misleading the world. On the African Court, he said that coming from the apartheid past, the institutions have been carried over, however the question needs to be asked whether a progressive jurisprudence should be encouraged with new values infused into the law. There is a responsibility to create a new African lawyer steeped in the principles of this progressive jurisprudence and law students need to understand how the law affects the society it governs. Ms Pilane-Majake’s point on reporting based on the Paris Principles, there needs to be coordination with other institutions for the purpose of reporting and even the delegations could be comprised of members from several institutions so that it can really speak for South Africa. Lastly, he said that the domestication of CEDAW and children’s rights was driven by civil society and the structures which pushed this through, need to be supported.

Mr Horn inquired about the lack of consensus on the LGBTI in government, Africa or South Africa. He suggested that the Committee as an oversight body ought to ensure the executive sticks to its commitments and at least the Minister ought to be made to respond to the obligations which were made in 2011, and indicate why he has not responded to the letter.

Ms Love confirmed that the letter by Chairperson Mushwana referred to the original commitment to host the seminar made in 2011 and the reiteration by the Minister in March 2014.

The Chairperson said that he understood the SAHRC had said that such statements are binding.

Ms Love clarified that these are politically binding. Further, all other regions have had their consultations, except Africa. Therefore, perhaps an inter-departmental effort would be able to indicate what can be done and by when.

Ms Majake asked if, after the statement was made, a letter was written to the SAHRC confirming that this would be taking place.

Ms Love said that the statement was made to the UN Council, at which the SAHRC was present, and the letter was inquiring as to the plans in this regard.

Ms Majake said that had the SAHRC expected an immediate response, it ought to have made the Committee aware of the problem and the Department of Justice and Constitutional Development would have been prepared to engage on the matter. 

Ms Love said the SAHRC has raised the issue with the Department of Justice and Constitutional Development and DIRCO many times and that it was not for the SAHRC to recommend action for the Committee.

The Chairperson said that the relationships between the affected parties need to be dynamic in order to address the issues raised and the Committee needs to interact with other affected parliamentary committees and public. On LGBTI rights, Africa takes a different stance from many other powers and a space needs to be made for Africa to express its views. It needs to be understood what Africa is saying and why and what the reasons are for other positions held. If a view is imposed, then people will simply ignore it. The same applies to the justiciability of socio-economic rights and the capacity of the country needs to be looked at to avoid a meltdown. He concluded that all affected parties need to be involved in pursuing solutions to the problems and communication needs to flow between the Committee, the Chapter Nine Institutions and government departments.

The Chairperson declared the meeting adjourned.
 

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