The briefing by the South African Human Rights Commission consisted of an overview of its Strategic Plan, Annual Performance Plan and budget allocations. It highlighted the achievements of the Commission against the Annual Performance Plan for 2014/15 which included finalising 90% (of a total of 8179) of complaints and completing statutory-required reports on Equality, Economic and Social Rights and access to information. Then the nine strategic outcomes, which are aligned with specific objectives identified by the Strategic Plan were enumerated, including engaging with a process of enacting legislation which promotes constitutional human rights obligations and enforcing the protection of rights through alternative dispute resolution and litigation. Next its five strategic objectives, with associated outcomes, as contained in the Annual Performance Plan were outlined. Lastly, a breakdown of the Commission’s 2015/16 budget allocation which was initially R137.3 million, expanded during the midterm budget review with an additional allocation of R7 million. This was divided into R2 million to fund the appointment of an eighth Commissioner and R5 million to fund some critical posts which were previously frozen. Personnel costs consumed 64%, while corporate services consumed 28% of the 2015/16 allocation.
Members raised concerns ranging from the need for the human rights based approach seeking to be encouraged by the Commission, to pay due credence to an African interpretation of these rights as neglecting to do so could lead to people being alienated from these rights. A major theme was the Commission’s efforts in dealing with xenophobia, which led to a concern about the implementation of the Commission’s recommendations generally. If the recommendations from SAHRC’s report on xenophobia in 2010 had been implemented, this could have assisted in averting the present crisis. Another concern was that the promotion of human rights has resource implications, especially where international instruments are ratified as they have concomitant resource implications. The Committee said that it is was important for people to understand that rights come with concomitant responsibilities and the Commission was encouraged to ensure its human rights education efforts included teaching about people’s responsibilities. It was decided that the responses from the Commission would be given in a dedicated session the following week.
South African Human Rights Commission briefing
Adv Mabedle Lawrence Mushwana, Chairperson of the South African Human Rights Commission (SAHRC), said the former Chief Executive Officer (CEO) had resigned with effect from 1 February 2015, as he wanted to pursue his studies. A new CEO, Ms Lindiwe Khumalo, has been appointed who will start on the first of May. Ms Khumalo is at the Banjul conference but would have been present otherwise. He noted that a complaint has been brought against King Goodwill Zwelethini and this has resulted in some threats against members of the South African Human Rights Commission, even on social media. The investigation is however continuing smoothly thus far.
The Chairperson said the SAHRC is an independent institution and this independence must be respected. If he were in the position of the SAHRC he would take the view that the issue regarding the King has been exhausted and government has done a lot to quell the situation. When the report is produced the unintended consequence of reigniting tensions may arise. All that can be investigated is what was said and different interpretations have been attached to the statement and he did not know what else could be found in the investigation. He noted that these were his personal comments.
Ms G Breytenbach (DA) was very pleased that the Chairperson had indicated that the comments were his own and not on behalf of the Committee, because the SAHRC is independent and must investigate what it sees fit.
Overview of the Strategic Plan and Annual Performance Plan
Mr Siyasanga Giyose, Acting Chief Executive Officer SAHRC, said the legislative framework for planning is based on the South African Human Rights Commission Act which stipulates the composition, functions and powers of the Commission. The constitutional and other legislative mandates require the SAHRC to promote awareness, monitor compliance, report to Parliament, respond to complaints and develop recommendations. The Public Finance Management Act (PFMA) is followed for good governance and the planning framework and processes are guided by the National Treasury Regulations.
Mr Giyose, after canvassing the SAHRC’s vision, mission and values, said the organisational structure of the Commission is headed by the executive authority, being the Commissioners. Then there is the Chief Executive Officer as head of the secretariat of the SAHRC. There are then further divisions, such as the Chief Financial Officer heading corporate services and financial management. The Chief Operations Officer programmes contain the core functions of the Commission including human rights advocacy and communications, Promotion of Access to Information and legal services. All these sections are situated at the central office, there are also nine provincial offices. These are all headed by a Provincial Office Manager and these people head three major offices being the Administration Secretary, Human Rights Advocacy and Research Officer and Senior Legal Officer.
Mr Giyose gave a brief overview of the highlights from the 2014/15 Annual Performance Plan (APP), which he noted was unaudited. The key highlights included an 87% achievement of that APP, Full participation in international and regional obligations and several submissions have been made on relevant international human rights instruments. More than 200 stakeholder engagements were held on various human rights issues. The Human Rights Advocacy Report on the thematic area of 2014/15: human rights and business was completed. 90% (of a total of 8179) of complaints were finalised. Statutorily required reports have been completed on Equality, Economic and Social Rights and access to information.
Mr Giyose said the Strategic Plan identifies nine strategic outcomes, which are aligned with specific objectives. The nine strategic outcomes and specific objectives include the following:
1 Use of the Broad Constitutional and Legislative mandate
- Deepen understanding of the mandate: through legal and other research to gather materials.
- Shared mandate requiring shared responsibilities with other institutions: through collaborations, following up on the status of referred cases and partnerships with civil society.
2 Engage with a process of enacting legislation which promotes Constitutional human rights obligations
- Engaging around legislation to promote human rights obligations: A key objective is
- Engage with legislative bodies and relevant stakeholders
- Submissions on draft legislation and policy
3 Enhance understanding of International and Regional Issues
- Promote domestication of international and regional instruments
- Engage with Special Rapporteurs and other stakeholder participating in international and regional fora to enhance the understanding of the relevant issues
- Promote compliance with reporting obligations on international and regional instruments to improve human rights impact
4 Enforce protection of rights through alternative dispute resolution and litigation
- In compliance with section 38 of the Constitution, acting on behalf of persons who cannot act in their own name in the public interest
- Use alternative dispute resolution (ADR) and facilitation wherever possible and ensuring proper monitoring of the implementation of agreed recommendations
- Use of litigation to enforce rights and challenge systemic problems
5 Intensify Advocacy and Public Outreach
- Develop advocacy strategy to improve conceptualisation of advocacy programmes
- Evidence based public outreach and advocacy events
- Baseline studies- advocacy interventions –evaluation of interventions
- Advocate for law reform
- Improved use of media to promote advocacy
- Integrated use of outputs to enable advocacy and develop material based on report recommendations and findings
6 Structuring of Strategic Focus Area (SFA) work to enhance effectiveness
- Establish principles for determination of SFAs
- Improving coordination of similar and independent rights
- Ensure broad mandate areas are covered, such as access to justice
- Supporting Commissioners with senior staff conversant with human rights issues and provincial demographics
- Determine annual thematic areas
7 Strengthen Key Stakeholder relationships
- Develop advocacy materials to articulate position of the Commission
- Briefing with Parliamentarians and political leadership
- Curriculum and policy review to strengthen human rights thinkini within government and public bodies
- Improve relations with the media and employ creative use of media to promote advocacy
8 Develop the Institution as a learning organisation
- Play research convening role and become human rights research reference in the country
- Making research accessible to wider audience
- Develop knowledge management system to capture and store all research outputs
- As part of monitoring of policy implementation, include analysis of the relevant budget allocation
- Use research to influence government policy and legislation
9 Strengthen capacity of the institution to support delivery on its mandate
- Adequate training and hiring competent staff
- Intensified research, legal and investigative skills
- Request increased resources given the broad mandate
Mr Giyose turned to the APP, saying that it contains five strategic objectives, with associated outcomes:
Strategic Objective 1: Promote compliance with international and regional obligations
▪ Participation in international regional activities, aimed at promoting implementation and compliance with agreements undertaken,
▪ Annual International Human Rights Report will be completed, assessing the progress government has made with its commitments made under select conventions,
▪ The Commission seeks to promote submission of reports by South Africa to relevant international bodies and the SAHRC has committed to a full review of identified, submitted country reports,
▪Monitoring framework to monitor implementation of the Convention on the Rights of People with Disabilities, which aims to monitor progress around progress around issues affecting people with disabilities.
Strategic Objective 2: Advance the realisation of human rights
Completion of an annual complaints trends analysis, detailing and comparing the nature and number of cases received by the Commission. Including a comparative analysis of cases from rural versus urban areas,
▪ Develop a repository of SAHRC report recommendations to monitor and engage on enhancing desired outcomes,
▪ Monitor the implementation of the High Court judgement on the Lindela Repatriation Centre, to ensure compliance with legislation and the detainees rights are protected,
▪ Annual thematic are report on business and human rights will be completed,
▪ Complete the State of Human Rights in SA Report which will asses the impact of the work of the Commission over the past 20 years,
▪ Conduct a public perceptions baseline survey, which will inform planning going forward,
▪ The Charter of Children’s Basic Education Rights baseline survey aims to sample quintile 1 to 3 schools per province to see how well they reflect the charter to improve its implementation,
▪ Create a matrix for economic and social rights indicators to enhance monitoring and reporting,
▪ Undertake two strategic impact litigation cases
▪ Conduct four national hearings on: discrimination at the workplace; two hearings on complaints statistics, broad data and report results and one unforeseen hearing,
▪ Maintain the 85% target for finalisation of complaints received,
▪ Continue submissions on relevant draft legislation,
▪ Conduct a scoping exercise conducted for establishment of a Complaints Intake Centre
Strategic Objective 3: Enhance and deepen the understanding of human rights and entrenching a human rights culture
▪ 110 stakeholder engagements concluded, where the Commission engages towards a broader adoption of a human rights culture in South Africa including issues such as the Older Persons Act, disability and poverty traps,
▪ 27 provincial public outreach engagements hosted, focusing on access to justice, access to information and child friendly complaints handling mechanisms and assessing the impact of 2014/15 outreach efforts
▪ 100% implementation of a integrated advocacy and communications strategy
▪ Commemoration of 20 years of SAHRC
▪ Advocacy and communication report
▪ Launch of Access to Justice Campaign in Free State
▪ Strategic Objective 4: Use and project a broader constitutional and legislative mandate
▪ Annual Equality Report
▪ Submission of Promotion of Access to Information Act (PAIA) annual report to Parliament
▪ Submission of PAIA recommendations report to the Department of Justice and Constitutional Development, including a review of PAIA
▪ PAIA institutional compliance report completed
▪ Implementation of PAIA promotion and advocacy strategy and plan, with an emphasis on local government
▪ PAIA handover framework completed in light of the creation of the Information Regulator
▪ Section 10 Manual reviewed and translated
Strategic Objective 5: Improve the effectiveness and efficiency of the Commission to delivery on mandate
▪ Review of institutional governance framework
▪ Establishment of IT based
▪ 100% implementation of organisational capacity development plan
▪ Gender mainstreaming, including its integration in budgets, plans, programmes and facilities
▪ 100% compliance with financial and non-financial performance information requirements
▪ 100% compliance with other relevant legislative and regulatory requirements
▪ 100% compliance with PEMR policy
▪ 100% implementation of records management plan
▪ 100% implementation of knowledge management plan
▪ Maintenance of the library
▪ 100% implementation of internal audit plan
▪ 100% implementation of strategic risks treatment plan
▪ 100% implementation of audit findings
▪ Unqualified audit opinion
▪ Implementation of Employee Wellness Plan
▪ Review of performance management system
▪ Monitor compliance with Corporate Services Charter
▪ Produce an Institutional Monitoring and Evaluation Report
Medium Term Expenditure Framework Budget Overview
Mr Giyose said the 2015/16 budget allocation was initially R137.3 million, during the midterm budget review an additional allocation of R7 million was added to the baseline. This was divided into R2 million to fund the appointment of an eighth Commissioner and R5 million to fund some critical posts which were previously frozen. He spoke to a table depicting the breakdown of the budget per cost centre. Personnel costs consumed 64%, while corporate services consumed 28% of the 2015/16 allocation. He noted the personnel cost salary adjustments were factored at 7.1%, as directed by the National Treasury. Further, included in the personnel costs were several vacant posts in senior management that totalled R5.5 million.
The Chairperson said the Commission had spoken of a human rights based approach, but it does not indicate what this entails, particularly, as in this country and continent there have been imported human rights instruments. There have been African reactions such as the adoption of the African Charter on Human and Peoples Rights, demonstrating that interpretations of human rights are coloured by one’s culture. Therefore the approach has to be contextualised and he hoped the Commission would elaborate. The Constitution is a product of a certain history, informed by the 1923 and 1943 Bills of Rights, 1954 Women’s Charter, the 1955 Freedom Charter, the Harare Declaration and the African Charter of Human and People’s Rights. He felt it was helpful that when interpreting the Constitution we should be mindful of this history. On SAHRC public engagements that it spoke about, human rights education is linked to the unfortunate events called xenophobic violence. These events have a history in a labour dispute, meaning that people may be aware of their rights but be unaware of how to enforce these rights leading to violence. Is enough being done to educate the people, because the Constitution is a long and complex document which sparks debates even among legal experts? Therefore, what is being done aside from just hearings to educate the people? On access to justice, there is a problem with communication and indigenous African languages are important. All the work being done by the Commission may be meaningless, because the people who are to benefit do not know what is being spoken about. Compounding this problem is that universities teach in English and there is no requirement for law students to study any African languages. Can it really be said that people will have access to justice given the high illiteracy rates or are the efforts merely for “compliance”?
Mr S Swart (ACDP) said he sees from the Budgetary Review and Readjustment Report that there were reports due in January, but these have not been received. Key for him was the concern that the SAHRC has difficulty getting compliance from the executive. In particular, looking at the present xenophobic violence and the report on xenophobic violence produced in 2010 which according to a SAHRC press release many of that report’s recommendations were not implemented by various government departments. He noted that Parliament needs to assist the Commission with this, because it has subpoena powers, but these are not effective. There is the Forum of Institutions Supporting Democracy (FISD), which needs to be supported. He asked whether this is still a problem for the Commission. Possibly if these recommendations had been implemented the present xenophobic violence could have been avoided. On the Promotion of Access to Information Act (PAIA) he asked what the process is from the Commission’s side about the hand over to the Information Regulator. He felt it a pity that the time which the Members had to engage with the SAHRC was so limited, as previously the Committee would have had a number of hours to engage. It would be useful to have copies of the SAHRC reports being sent to the Parliament, for the Committee to assist with noncompliance. On SAHRC involvement with the Marikana Commission, the Committee had requested it be provided with a written progress report on its involvement in the Marikana Commission by January 2015 and he would like to know what is occurring with this involvement.
The Chairperson said he felt the matter of reports has been dealt with, because the reports go to the Office of the Speaker and it would be helpful for the relevant Committees to receive copies. Otherwise the report would be produced merely for the archives.
Mr Swart said this may be but he is yet to see a report and perhaps this ought to be taken up with the Office of the Speaker.
The Chairperson said the easiest solution would be to send copies directly to the Committee, in addition to the Speaker.
Ms G Breytenbach (DA) on the xenophobia attacks, asked whether the SAHRC was aware that a Nigerian human rights group has laid a charge with the International Criminal Court for hate speech against King Goodwill Zwelethini. She asked whether this has any effect on the SAHRC’s investigations. In 2008 recommendations were made by the SAHRC, including the establishment of an Inter-ministerial task team and she would like to know what had become of these recommendations and why they were not implemented.
Ms M Mothapo (ANC) commended the SAHRC for the prompt filling of the position of Chief Executive Officer. She asked how far the SAHRC was with the access to justice campaign scheduled for the end of April 2015. If it is completed she asked for elaboration, and if not, she asked why. She asked what progress has been made in filling of provincial management and other senior posts. On the 27 outreach programmes, with three per province, she asked whether this will be sufficient in vast provinces such as the Eastern Cape and Kwa-Zulu Natal. She asked for elaboration on the plans for gender mainstreaming. She asked for the numbers of women and people with disabilities in the Commission, as it ought to lead by example as a human rights organisation.
Mr M Maila (ANC) on dispute resolution, he said in many rural areas disputes are resolved through traditional courts despite the absence of regulating legislation. Does the SAHRC find the set up in traditional communities amenable to enhancing human rights? If, not how can the Commission aid in ensuring there are no transgressions in such fora.
Mr L Mpumlwana (ANC) said he understood that the SAHRC has a very broad mandate, yet there are a number of similar institutions concentrating on various areas. He wanted to know how the Commission prioritises issues, such as crime which affects poor people. Secondly, there are issues around a foreign language being used generally in South Africa, such as in courts and in the general dissemination of information. He suggested that the questions which need to be answered are how many people are benefiting as a result of the SAHRC’s existence, where are they located and how is this impact judged? He would suggest that these two areas are where the Commission’s focus needs to lie. He echoed the Chairperson’s on whose interpretation of rights is being upheld under the human rights based approach.
Ms C Pilane-Majake (ANC) said she was glad that the Commission was not just hammering on the need for money, because this is a trend in some of the meetings. This means that the SAHRC is aware of the position of the country and the austerity measures being applied. She wanted the SAHRC to understand that the ratification of international and regional instruments has resource implications for the country. She would like the Commission to look at the financial implications of the treaties already ratified. Due to the history South Africa comes from, it was over enthusiastic about ratifying any instrument which spoke to the rights violated in the past. However, in the process, South Africa should not over-commit itself to the point where it seems as though the country is underperforming. It therefore important for the Commission to provide a report on the resource implications of the various instruments, because only once such a study is completed will the country be able to prioritise the instruments which speak to its priorities. She felt the baseline study on public perception was a good effort which will be looked forward to, because this will help indicate the progress made by the institution in protection of human rights. She also agreed that the consolidation of SAHRC recommendations was a good move, because this will allow Parliament to assist in ensuring implementation, by understanding where the problems lie. On PAIA, she said it is a good idea to have the Committee informed about the handover to the Information Regulator. On gender mainstreaming, she was concerned that side-line comments from Members turned to defending men when gender issues arose and she wanted to guard against losing ground on the progress made for the rights women in South Africa. She understood that this mainstreaming spoke to the institution itself, rather than an annexation of the functions of the Commission for Gender Equality. Ms Mothapo has mentioned the dimension of people with disabilities, but there were several other dimensions including youth and race. To ensure the goal of transforming society is achieved. The baseline public perception study is done, the question whether people think South Africa is making progress towards transformation should be asked. Talking of issues of gender today, people perceive that the race is being lost and what is holding the country back needs to be understood. On xenophobia, she had heard that previously the SAHRC had produced a report which government had done nothing to implement. The fact of the matter is that there is a crisis at present and often in such a situation South Africans will not see the problem the same way. It needs to be understood why this is, because South Africa needs to provide a unified front. Matters like this need to be interrogated to put the country in a position to build on the peace.
Ms S Shope-Sithole (ANC) said she is often concerned with children’s rights and perhaps the SAHRC is the correct institution to help teach the children of South Africa both their rights and responsibilities. It should not be a once a year event and human rights acknowledgment should be part of the culture of the country. She suggested that part of the budget could be dedicated to collaborating with the Department of Basic Education in teaching children not only about their rights, but also their responsibilities. Further, inexpensive platforms such as community radio could be used to speak about rights, bearing in mind that responsibilities also need to be mentioned.
Mr W Horn (DA) noted the positive story of the finalisation rate of the SAHRC dramatically increasing over the past few years from 16% to 85%. On the SAHRC website, the former CEO mentioned that the better rate had come at the cost of staff morale. Last year the Auditor General had highlighted the absence of an IT strategic plan for the Commission and he would like feedback on whether this has been put in place since.
The Chairperson said the Commission had spoken to domestication of regional and international instruments. However, the Committee does not get informed about what steps are taken towards this domestication. Further, there are traditional courts which he would prefer to call community courts with a community justice system in operation. He asked why these creations of the people are being ignored for alternative dispute resolution (ADR) mechanism. Is this disrespect for Africans and their creations? What is good about the community justice system, is that the system is inquisitorial rather than accusatorial and makes decisions based on consensus rather than guilt. While it is good that the SAHRC goes to the rural to teach human rights, this cannot mean only teaching European human rights. Looking at human rights from one side, leads to a clash of cultures and their views of law. In the processes will this not alienate the people from the human rights culture which is sought to be promoted over the long run? For instance he felt the land issue was a major problem, with a dysfunctional Land Claims Court and land claims not being finalised. Should the Commission not prioritise investigating why these courts are dysfunctional and the claims are not finalised, because however much is taught about rights, the concrete issue is that people need to eat. If people have land there will be access to resources and people will be able to deal with poverty themselves. Parliament wants to see radical socio-economic transformation and the SAHRC should assist government with this. Lastly, if the human rights education programmes are effective why do people tend to resort to violence whenever they are dissatisfied, for example violent protest? Does this not say something about the efficacy of human rights education and he felt the programmes should be geared towards dealing with the current problems.
Adv Mushwana said, having listened to the questions, he was sure that the Commission had very good answers which may be restricted due to the time constraints. It was felt that justice would not be done to the work of the Commission if this was done. To delve into issues such as land claims, gender mainstreaming and PAIA in a superficial manner could lead to the media misrepresenting the situation.
The Chairperson said an offer had been made to the Office of the Public Protector three hours ago to return to the Committee. This was refused and he wanted to make the same offer to the Commission.
Adv Mushwana said he was serious about the issues of time, because he did not want to curtail answering these questions due to time when the Commission could fully answer the questions.
The Chairperson said he did not think the issue was answers; rather what was important would be that the good work being done by the Commission is exposed to the public. He would therefore prefer to offer the time, also to have the insights which would be useful to share with the Committee. This may help the Committee understand what the Commission is or can do to deal with the anger which is felt by the people.
Adv Mushwana said he would liaise with the Commissioners, because he is eager to have the questions answered. The opportunity would also allow the Committee to advise the Commission, because no one benefits from truncated discussions.
The Chairperson whether the opportunity would be accepted by the Commission.
Adv Mushwana replied that it would and he would communicate with the specific Commissioners, because it would be best to have the Commissioner present from the relevant focus areas.
Mr Swart said there was the alternative of submitting written responses, if the Commission was unavailable. Although it would be best to have a face to face interaction, with follow ups.
The Chairperson said it is very important to engage directly, because hope needs to be given to the people of South Africa.
Ms Shope-Sithole agreed with the sentiment.
Adv Mushwana said it should not be understood that the Commission is not prepared to answer some the questions raised.
The Chairperson said the answers were important, because they will help inform the country about the Commissions activities which are helping to deal with the frustrations of the people of South Africa. However, sufficient time needs to be given which will be available the following week.
Mr Swart asked for an indication of the size of the delegation, bearing in mind costs. It was in the Commission’s hands, but it was not necessary that all the Commissioners were present.
The Chairperson said the costs would be nothing compared to the cost of libraries and schools being burned down. He agreed it would be in the Commisssion’s hands, but their presence will be valued.
Ms Pilane-Majake said it would be important for the Commission to come up with a strategy to deal with xenophobia from the perspective of the Commission. Part of this could be efforts towards education. At the same time this should be approached with the aim of pre-empting crises, rather than putting out fires.
The Chairperson said the mandate should be broad, because as has been heard, the SAHRC had already produced a report on xenophobia. He then declared the meeting adjourned.