Truth And Reconciliation Commission: Annual Report

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Justice and Correctional Services

21 May 2000
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Meeting report

JUSTICE PORTFOLIO COMMITTEE

JUSTICE PORTFOLIO COMMITTEE
22 May 2000
SOUTH AFRICAN HUMAN RIGHTS COMMISSION: ANNUAL REPORT

Acting chairperson: Ms P Jana (ANC)

Relevant documents
Statement made by the Chairperson of SAHRC
Powerpoint presentation made by the CEO of SAHRC (attached)
Corder Report on Oversight and Accountability

SUMMARY
The South African Human Rights Commission complained that reports made by them and issues raised by them are not adequately addressed by Parliament and do not find their way onto the agenda and floor of the Houses of Parliament.

Dr Pityana noted the Commission's desire to have clear systems of independence. They believe that the independence of constitutional institutions which report to Parliament should be enhanced. At the moment they are still funded through the Department of Justice. They believe that this is wrong because as a Chapter 9 constitutional institution they are subject to the Public Finance Management Act. This Act stipulates that the Commission is accountable to Parliament directly and not through the Minister of Justice. They urged the members to consider this. Dr Pityana also complained about the quality of the questions asked by Members of Parliament, saying that they often ''displayed ignorance'' of the Commission.

MINUTES
South African Human Rights Commission
Dr Barney Pityana (Chairperson of SAHRC) and Ms Lindiwe Mokate (CEO of SAHRC) gave the presentation. Other representatives from SAHRC were also present to assist with answering questions.

Dr Pityana made the following key points:
- The Commission is concerned that the reports of the Commission and issues raised by the Commission are not adequately addressed by Parliament.
- They want Parliament to consider the Corder Report on Oversight and Accountability which aims to enhance the independence of the constitutional institutions which report to Parliament.
- The vision of Parliament is undermined by the enormous strain on Parliament. They proposed a one-day workshop to exchange ideas about how Parliament could be more effective in what it seeks to achieve with the support of organs of civil society (example NGOs) and independent institutions. (This proposal has already been made to the Speaker).
- The Commission is accountable to Parliament directly and not through the Minister of Justice.
- The quality of MPs' questions display ignorance and they would like to see questions which display an understanding and support of the Commission.
- They object to the funding the Commission through the Department of Justice.
- There is still no clarity about the terms and conditions of employment for the members of SAHRC. This results in confusion about the status of the Commission (as they are covered neither by the terms applicable to judges nor the terms applicable to the civil service regulations).
- During the coming year the work of the Commission will focus on:
1) Racism: The implementation of new human rights legislation. The Commission will host a National Conference on Racism called for by the President in his State of the Nation address. The Conference will take place between 30 August - 2 September this year. A national consultative process will be undertaken in June to get all of South Africa talking about racism. A consolidated report on the Conference process will be presented to the President on International Human Rights Day (10 December).
2) The National Centre for Human Rights Education and Training will be launched. It will be a national resource for a systematic programme of human rights education and training on various aspects of human rights that impact upon national life.
3) An independent evaluation of the Commission's work to make proposals for the strategic development of the Commission during its next phase of existence.

Ms Mokate made the following key points:
They have been involved in:
- major reports and studies (example, a national study of racism and racial integration and a socio-economic rights report),
- major campaigns (example, the Roll-back Xenophobia campaign),
- major conferences and seminars (example, the HIV/AIDS seminar), and
- major investigations and inquiries (example, the inquiry into racism in the media).

They appointed four new Commissioners during 1999 which means that there is now a full complement of Commissioners.

Projects - Currently they are investigating racism in the Department of Justice. There are various proposed projects but they cannot be implemented at this stage because there are no funds available. These include advocacy unit projects (example, an Equality Legislation Awareness Programme) as well as research and documentation projects (example, a socio-economic rights monitoring project).

The final report for the inquiry into racism in the media is due in August this year. They consider this to have been a very valuable exercise. The effects of this have already been seen, namely heightened and more balanced media coverage and very successful public education.

A key new venture is the Human Rights Education and Training Centre (HRETC). The mission of this centre is to support and develop educational processes which enable a more sustainable human rights culture to be developed in South Africa. They will deliver human rights-oriented courses, workshops and seminars. They will also look at capacity building in human rights education and training to a range of sectors.

New legislation has had an impact on the SAHRC. The Promotion of Equality Act states that the SAHRC must now assist people in formulating their complaints on unfair discrimination to the Equality Courts. They will also be required to assist in drawing up the guide book stipulated in the new Promotion of Access to Information Act.

Due to increasing workloads there is a growing need for further researchers and administrative staff. Currently there are staff vacancies (in approved posts) which impact negatively on the work of SAHRC. This results in delays and severe backlogs particularly in the processing of complaints and the development and implementation of campaigns and educational initiatives.

Discussion
Ms Jana asked about SAHRC's efforts to deal with human rights violations in Africa.
Dr Pityana said that where there are human rights concerns in other countries South Africa's international obligations are determined by its bid to uphold the Constitution. SAHRC assists others to develop human rights and to find mechanisms to correct human rights violations in their own countries. Beyond this South Africa does not really intervene. If however South African citizens are involved then they would intervene.

When asked by a member about the vision of the Commission, Dr Pityana said that the Commission is at its mid-point. He was referring to the fact that a new Commission will have to be elected by Parliament in 2002. Future work for the Commission includes stabilising mechanisms for new human rights legislation (example the new Equality Act) and evaluating the impact that the Commission has had. They must lay the groundwork for the new Commission in 2002. Much of their work also focuses on national conferences and world conferences against racism.

Ms Jana asked how pro-active the Commission has been and what the impediments to the Commission have been.
Dr Pityana replied that the socio-economic rights of people was an issue which the Commission felt was critically important. Examples of issues which they felt must be looked are land security and the living conditions of farm workers. The Commission has however attempted not to limit themselves to such issues. Most of the Commission's work comes from complaints but they have also looked at enforcing human rights. Ms Mokate added that they ensure that children's rights are focused on and protected.

In pointing out a concern that the Commission was not promoting itself sufficiently, Ms Jana said that in a recent visit to a technikon, she discovered that the students were not aware of the work of the SAHRC.
Dr Pityana said that they have been involved in various radio campaigns. Radio Sowetan gives them free advertising space whenever they have some available which is quite frequently. The public awareness campaign has a lot to do with the work of the Commissioners. In March, during Human Rights week they increase public awareness by visiting schools.

Ms Jana expressed her concern for the awareness of those persons who do not have access to radios and newspapers.

Ms Smuts (DP) referred to the following comments made in Dr Pityana's speech:
''The debate … exposed … the blatant effort by some political parties to limit, by restrictive interpretation, the mandate and powers of the Commission. The second, the unfortunate manner in which some political parties sought to politicise the work and activities of the Commission.''

Ms Smuts said that this comment could not pass without a challenge as it was an attack on the Democratic Party and on its leader, Tony Leon, with reference to comments he had made in a parliamentary debate.

The Chairperson said that she was not going to allow a debate on this issue.

Mr Delport (DP) and Ms Smuts queried this and asked whether the Chairperson was limiting the official opposition on a debate. The Chairperson said that Ms Smuts would not be allowed to debate this but only to pose a question.

Ms Smuts raised the following:
- How does one avoid politicising the race issue in investigations?
- At the upcoming Conference on Racism, she asked if they were going to invite people to make the representations after the SAHRC made their report.
- How can good South African people engage with them (what is the consultative procedure)?
- Before starting the Conference, there must be a definition of racism. What is their definition of racism (is it what Whites do to Blacks), does it include ethnicity?
- Who will be the key speakers?

Ms Smuts also commented that the Executive does not take the SAHRC seriously. This is evident from the SAHRC's Annual Report. She pointed out that the fact that there was only half a dozen Members of Parliament present at the meeting spoke for itself.

She noted Dr Pityana's negative comments about the quality of the questions put by the Members. In response to this she said that this was
unheard of. ''He is telling members how to ask questions.'' She said that there was a problem with the attitude of the SAHRC towards MPs and that this was the wrong footing on which to start.

Dr Pityana's response was that he had not mentioned any particular political party. He was simply saying that as a committee they must resist the temptation to become politicised. Parliament's responsibility was to protect the independence, impartiality and the dignity of the Commission. He said that he was sorry that Ms Smuts felt that the Democratic Party was the object of the Commision's criticism. The Commission only wanted to guard their independence and did not want a narrow interpretation of their mandate nor did they want the Commission to be politicised.

Dr Pityana stated that the discussion document on the national Conference on Racism sets out that the conference has to be truly national and representative. It is set up by government but it is not a ''government conference''. He said that he did not think that they had to start with a definition of racism, and racism is not what Whites do to Blacks.

He said that they will obviously deal with ethnicity. Combating racism must happen through dialogue and between June - July there will be a national consultative process which will engage people to talk about racism. The Conference will take place from 30 August to 2 September 2000 in Sandton, Gauteng. South Africa will draw from its own experience. They will have three speakers. They want the Conference to be practical and engaging. He indicated that he would be one of the speakers at the Conference. They were hoping to have an international speaker on racism . The focus will be on overcoming racism. The President will open the Conference. The objectives of the conference appear on their website.

Mr Mabeta (UDM) commented that it was the Commission's responsibility to ensure that the debate on racism did not become an exclusive party political affair. It should include all parties.

Ms Rajbally (MF) asked what the SAHRC has done to involve youths as volunteer workers to help with the workload. Ms Mokate said that they do have a volunteer system. They are limited in the number of volunteers that they can take on because of simple issues such as office space and equipment.

Ms Rajbally asked if community-based organisations (which came in on a voluntary basis) assisted them. Ms Mokate replied that they worked with them as and when necessary. For example some were interested only in the issue of HIV/AIDS and helped on such projects. CBOs have been very helpful especially in dealing with gross violations. However there is no organised system and they have not adopted this as policy.

Advocate Masutha (ANC) commented that there should be an awareness raising of human rights and that litigation was the ultimate mechanism for human rights protection. He asked if they could quantify how much of their resources could be attributed to the area of litigation.

The panel replied that their vision was to ensure faster turnover of complaints handling and also to be more involved with litigation. By going to court the kind of precedents that one can create is invaluable. Even if the Commission does not resort to litigation the Commission must still comply with the rules of natural justice. This means that they must give the complainant and the respondent an opportunity to set out their side of the story. This is a time consuming process but it is not time wasted because respondents comply with the findings and conclusions of the Commission.

Adv Masutha asked if they were in a position to interact with state bodies such as the Legal Aid Board to see how capacity could be shared to challenge human rights violations. The panel said that the Board was cutting off legal aid ''mid-case'' and the Commission had received complaints of this. Cases to the Board are non-human rights cases. The Board mostly deals with awaiting trial prisoners who have to appear in the lower courts. They said that they were not sure what impact the Board could have in reducing the load.

Dr Delport (DP) commented that the wrongs of the past cannot justify the present day wrongs. He drew the following scenario: A girl gymnast is invited to participate in the Olympics but she is not allowed to go simply because she is white. A hockey team is not allowed to go to the Olympics because they do not have black members. ''This is blatant racism''. He asked the committee if they would do anything about this because ''it is blatantly wrong''.

The panel said that the Olympic Committee looks at the rules set on representivity and the national basis for those rules. The Olympic Committee would look at these issues in the framework of the Constitution.

Mr Mabeta referred to the statement in their document that they were undertaking anti-racism training projects with SAPS and commented that many other departments such as Defence needed such training.

The panel replied that they do work closely with the leadership of SANDF. Recently, senior officers went on a SAHRC course. The SAHRC had an open relationship with the SANDF as to how they could offer them further support.

Ms Smuts said that the first draft of the equality legislation recently passed was so bad that it had to be rewritten from scratch. She asked what the costs of this was for the taxpayer. She said that the enquiry into media racism should never have taken place and asked what the costs were.

Dr Pityana said that the Equality Legislation Drafting Unit that drafted the Equality legislation had been a joint project between the SAHRC and the Minister of Justice. The costs (excluding employees salaries) were drawn totally from donor funds. The task given to them was to provide a framework for that legislation and that was done.

The media investigations had been an ambitious project but it had to be done. The Commission determines its own priorities and carries out its own objectives. The cost of this was approximately R500 000. Publishing the report will bear additional costs.

Dr Pityana said that the SAHRC hopes to have clear systems of independence. At the moment the Department of Justice still has financial control over them. They believe that this is wrong because as a constitutional institution they are subject to the Public Finance Management Act.

Ms Smuts interrupted to agree with them saying that this (Department of Justice's financial control over SAHRC) was illegal now because in terms the PFMA they must report directly to Parliament.

Advocate Masutha asked that the Commission pause to reflect on the impact of their work on the country. He said that the committee should hear about outcomes and not input. The Chairperson asked how they have advanced as SAHRC.

Dr Pityana said that they work within their legal and constitutional framework. This has made an impact in real life. They have made visible the country's concern about human rights violations. They believe that they have begun to make the institution work. The fundamental view of the Commission is that they cannot function effectively and adequately without a commitment to human rights. They are aware of the Commission's important constitutional obligation to entrench a culture of human rights within the Departments. Human rights is intrinsic to what they seek to do and it also plays a role in good governance.

The Chairperson commented that they were also given the power to litigate. Their power therefore went beyond monitoring. She congratulated them for the sterling work done so far.

The meeting was adjourned.

Appendix 1:

Presentation to the Justice Portfolio Committee
Cape Town

22 May 2000


BROAD OVERVIEW OF PRESENTATION

Introduction

1999 - Programme Highlights

1999 - Finances

2000 - Current Project

2000 - Finances

2000 - Key New Venture

2000 - Current Challenges

1. INTRODUCTION
Mission Statement

The South African Human Rights Commission is the national institution established to entrench constitutional democracy. It is committed to promote respect for, observance of and the protection of human rights for everyone without fear or favour.

"The Human Rights Commission must -

… promote respect for human rights and a culture of human rights;

… promote the protection, development and attainment of human rights;

… monitor and assess the observance of human rights in the Republic."

Constitution of South Africa, Section 184 (1) (a) (b) (c)

2. 1999 PROGRAMME HIGHLIGHTS

· Major Reports & Studies

· Major Campaigns

· Major Conferences

· Major Investigations

· Complaints Handling

· Grassroots interventions

· Legislation Monitoring

· New Commissioners

· New Provincial Offices

· Other Provinces

· National & International Initiatives

Major Reports & Studies

· National study of racism and racial integration in public secondary schools

· Socio-economic rights report

· Research Project on the Rights of Indigenous Peoples

· Comment on TRC Report Recommendations

"The Human Rights Commission must… monitor and assess the observance of human rights in the Republic" - Constitution of South Africa, Section 184 (1) (c)

Major Campaigns

· "Roll Back Xenophobia" Campaign Annual School Poster Competition
(1999 theme: "Stop Racism Now")

· Celebrations of Local, Regional and International Human Rights Days

"The Human Rights Commission must …promote respect for human rights and a culture of human rights" - Constitution of South Africa, Section 184 (1) (a)

Major Conferences & Seminars

· International Consultative Conference on Food Security and Nutrition as Human Rights

· Macro-Economic Policies and Children's Rights Conference

· Open and Accountable Democracy Conference

· Workshop on the rights of victims

· HIV / AIDS Seminar

"The Human Rights Commission must… monitor and assess the observance of human rights in the Republic" - Constitution of South Africa, Section 184 (1) (c)

Major Investigations & Inquiries

· An inquiry into racism and racial discrimination in the Vryburg District of the SAPS

· The inquiry into racism in the media

· Investigation into police custody conditions

· Human rights in the criminal justice system

"The Human Rights Commission must …promote the protection, development and attainment of human rights" - Constitution of South Africa, Section 184 (1) (b)

Complaints Handling

· Racism in schools (eg Vryburg)

· Racism in the Public Service

· Socio-economic rights - especially education and health care

· Freedom of movement (esp Lindela)

· Discrimination against foreigners

· Farmworkers (eg Tshipise/Messina district)

· Traditional law vs Constitution

· Environmental

· Prisoners' rights

Grassroots Interventions
Both head office and provincial education and training staff members were very active during 1999, as the statistics below show.

Number of major seminars, presentations and lectures

No: 149

No of people reached: Thousands

Provincial Workshops ~

No: 121

No of people who attended: 9639

Legislation Monitoring

· The Promotion of Equality and Prohibition of Unfair Discrimination Act

The SAHRC co-operated with the Ministry of Justice to form the Equality Legislation Drafting Unit. Activities of the Unit included:

  • Submission of the draft legislation
  • Research
  • Social and legal studies
  • Comparative studies on equality
  • Consultations on public understanding/expectations
  • Testing of public opinion
  • Framework Document handed to the Minister in June 1999.

The SAHRC will acquire extensive responsibilities as a result of the new legislation. It has resolved to publish, as soon as possible, an information booklet on the Act.

· Ongoing monitoring of other legislation

The SAHRC continued to make regular submissions on numerous draft or proposed pieces of legislation

· New Commissioners

The appointment of four new commissioners during 1999 meant that, for the first time since December 1995, there is a full complement of Commissioners. The new intake of commissioners improved the gender balance and brought in new areas of expertise which were otherwise lacking in the Commission.

Commissioners Leon Wessels and Tom Manthata were appointed as from January 1999 and the two most recent appointments are detailed below:

Commissioner Zonke Majodina (part time) - Commissioner Majodina oversees the rights of refugees, asylum-seekers and migration policy and she shares responsibility for the Northern and Western Cape Provinces with Commissioner Wessels.

Commissioner Charlotte McClain - Commissioner McClain focuses on socio-economic rights, and she is responsible
for Mpumalanga. She also serves on the SAHRC's
Committees on Children's Rights and Disability.

New Provincial Offices

Eastern Cape - in Port Elizabeth since March 1999

• 4 staff members

• Activities/Challenges: - social benefits - education - rural conditions - older persons - disability - HIV/AIDS

Northern Province - in Pietersburg since February 1999

• 4 staff members

• Activities/Challenges : - older persons - farm workers & rural communities - schools & education system generally - prisoners - social security - citizenship - labour problems

KwaZulu-Natal - in Durban (officially since September 1999)

• 4 staff members

• Activities/Challenges : - discrimination on the basis of religion - controversial cultural practices - provision of education - access to housing - child abuse - HIV/AIDS

Other Provinces

Western Cape - in Cape Town since 1997

• 5 staff members

• Activities/Challenges : - legislation monitoring - complaints handling - education - immigration - language/religious sights

North West Province

• Supervised by a Commissioner

• Activities/Challenges : - poverty - inequality - human rights violations against farm workers - racism and racial discrimination in both public and private sectors - gender equality within African traditional setting

Northern Cape

• Supported by the Cape Town office and Commissioners

• Activities/Challenges : - child labour - asbestos-related illness - education - racism

National & International Initiatives

National Liaison

Consolidating the Forum of Independent Statutory Bodies

International Liaison

· The convenor and secretariat of the African Co-ordinating Committee of National Institutions

· SAHRC seeks affiliation to the African Commission on Human and Peoples' Rights

· Part of the International Co-ordinating Committee(ICC) of National Institutions.

· Attends the annual sessions of the UN Commission on Human Rights in Geneva.

· Supports the UN/SA Government Human Rights Institutional Strengthening

· Project, particularly with human rights training.

· Undertook to publicise the Grand Bay (Mauritius) Declaration and Programme of Action, adopted at the First Ministerial Conference on Human Rights in Africa, since endorsed by the OAU.

3. 1999 FINANCES

· Unaudited Expenditure 1999

· Standard Items

· Main Programmes

· Donor-funded projects

· Funded via Commission

· Direct payments of funds

Update on Inquiry into Racism in the Media

· Public hearings held for 10 days during March & April 2000

· 52 "witnesses" testified willingly

· The proceedings were conducted in a very honest and open way - even with "robust debate"

· The focus was placed on the heart of the inquiry - racism, its manifestation, its impacts and how to address it

· Overall it was a very valuable exercise

· The way forward:

  • The final report is due in August 2000

- There have already been positive results:

- Heightened and more balanced media coverage

- Very successful public education

-Training of senior journalists around race already conducted

Cost to date (unaudited): R471 479

2000 - KEY NEW VENTURE

SAHRC Human Rights Education and Training Centre (HRETC) Mission

The HRETC aims to support and develop educational processes which enable a more sustainable human rights culture to be developed in South Africa

Primary Activities

Customised course, workshop and seminar development and delivery on human rights for diverse sectors and practitioner formations. 

Customised participatory materials development for a range of human rights education and training processes.

SAHRC Human Rights

Education and Training Centre

Objectives

To provide, support and deliver human rights-orientated courses, workshops and seminars and capacity building in human rights education and training to a range of sectors. 

To enable and support collaborative human rights education and training initiatives. 

To enable, support and develop human rights education and training materials for specific purposes. 

To enable and support the human rights filed and broader community through the provision of professional services in human rights education and training. 

To enable, support and participate in human rights related publications

2000 - KEY CHALLENGES AND FOCUS AREAS

Administrative Goals

Aligning the Commission's financial management systems with provisions of the new Public Finance Management Act.

Piloting and implementation of new performance management system in line with Public Service Regulations.

Reviewing staff conditions of service to bring them into line with LRA, BCEA and Employment Equity Act.

Linking computer systems of Head Office and
Provincial Offices to facilitate improved communications
and complaints handling.

Legal Challenges for 2000

Potential Litigation

The SAHRC may have to go to litigation in respect of retroviral treatment for pregnant mothers who are HIV+ (pending response form Department of Health)

Impact of new legislation

In terms of the Equality Legislation, the SAHRC is to assist people to formulate their complaints to the Equality Courts

The Equality Courts will also refer complainants to the SAHRC

The SAHRC will be required to assist in drawing up
the guidebook according to the stipulations of the
Public Access to Information Act.

The new Medical Schemes Act will also impact
on the SAHRC

Impact of lack of resources

Current Staff Vacancies (in approved posts)

Legal Dept (Head Office):

· Senior Legal Officer

· Legal Officer

· Legal Intern

· Legal Secretary

Advocacy Unit (Head Office):

· Deputy Director: Campaigns

· Senior Education & Training Officer

· Campaigns Officer

· Campaigns Officer

These gaps obviously impact negatively on the work of the SAHRC, resulting in delays and severe backlogs, particularly in the processing of complaints and the development and implementation of campaigns and educational initiatives.

Current Needs for additional staff

Due to the ongoing and increasing workloads through all offices as the SAHRC becomes better known to and more sought-after by the public, there is a growing need for:

· Further researchers in the Research and Documentation Department at Head Office
(7 for socio-economic rights, 2 for general legislation monitoring and 20 to handle the new Acts)

· Further admin staff (including a personnel clerk and an internal auditor)

· More provincial staff members (especially education and legal officers)

· Staff for a new office in the Free State

 

 

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