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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
8 June 2001
SOUTH AFRICAN HUMAN RIGHTS COMMISSION: ANNUAL REPORT
Documents handed out
Presentation to the Justice Portfolio Committee
SAHRC Business Plan for 2001/2 (email firstname.lastname@example.org for document)
SAHRC Financial Statements 2000/1
The SAHRC Chairperson spoke on the human rights environment within which the SAHRC carried out its function, the independence of the SAHRC, international relations and the future of the SAHRC. Out of these, two subjects sparked passionate debate. Firstly, Dr Pityana complained that the South African Human Rights Commission was not receiving the respect it deserved inside South Africa. Dr Pityana explained that the SAHRC was a highly respected organisation outside of South Africa while internally it was ignored and taken for granted. Secondly, Dr Pityana explained that the SAHRC also did not enjoy as much independence as similar organisations elsewhere in the world did.
The Committee Chairperson told Dr Pityana that the model of institutional independence that he had detailed did not exist anywhere in the world and would not be brought into being in the South African context either.
The PowerPoint presentation covered all aspects of the budget.
Dr N B Pityana gave an overview of the SAHRC accomplishments and its plans for the future. He told the Committee that the highlight of the year was the consolidation of five years of activity by the South African Human Rights Commission as an essential part of democracy. The Constitution recognises the Commission as one of the state institutions established to support and strengthen democracy.
Earlier in the year the SAHRC had undertaken a performance evaluation only to find more than satisfactory results. The Commission also set clear priorities and sharpened their focus on racism, established a national Centre for Human Rights Education and Training and engineered the transformation of the organisation into a centre for human rights advocacy.
Human Rights Environment
Dr Pityana then spoke on the attitude towards the human rights paradigm within South Africa. He said that very seldom is there social and political debate informed by human rights imperatives. What was of concern to him, or the Commission, was the fact that politicians and columnists rarely recognize that the propositions should be predicated on human rights and on our constitutional values.
The Commission has therefore sought to raise and extend public awareness of racism and affirms that racism is a threat to our constitutional values. The SAHRC thus continues to strive to change public perceptions of racism and to develop a culture that is resilient to all forms of racism. To this end the process for developing the National Action Plan to Combat Racism is now underway and the SAHRC hopes to present to Cabinet a draft for consideration by August 2002.
At the same time the SAHRC has been taking its mandate seriously, with its case load and range of cases increasing steadily. It plans to address practices within the law enforcement agencies, namely those characterised by xenophobia and racism.
On a promotional level, the opening of the National Centre for Human Rights Education and Training was a huge success. Through such mechanisms the SAHRC has been able to reach a greater number of people. It has similarly geared all its activities to express its advocacy model.
Independence of the Commission.
Dr Pityana said that after five years of operations, questions relating to the independence of the Commission have not yet been resolved. The area of concern is that of the determination and allocation of the SAHRC’s budget. To resolve this, the SAHRC has in the past proposed amendments to the Human Rights Commission Act. Dr Pityana did concede that some effort in this area had been made because the Commission could now make representations on the Medium Term Expenditure Framework on its annual budget. The perceived problem is that the National Treasury still continues to relate to the Commission through the Justice Department, which in turn means that the SAHRC has no direct means of having queries and problems addressed.
Dr Pityana pointed to another insensitivity to the independence of the SAHRC. In terms of the Public Finance Management Act, the SAHRC cannot legally perform some of the activities associated with juristic persons. In terms of their current position the SAHRC cannot rent premises in its own name or own any property in its own name. This is the position despite the fact that the South African Human Rights Commission Act states clearly that the Commission "shall be a juristic person".
Also of concern is the fact that after five years the members of the Commission continue to operate without proper terms and conditions of employment. As a result the Commissioners are hardly differentiated from ordinary civil servants and their salaries lag far behind those of individuals in comparable civil service posts.
Dr Pityana said that the SAHRC enjoys better treatment abroad and is in fact held in very high regard amongst other international human rights organisations. The SAHRC is a member of the UN sponsored International Coordinating Committee of National Institutions and has the status of an affiliate institution to the African Commission on Human Rights and People’s Rights. In this light Dr Pityana says it must be understood why the SAHRC feels it necessary to intervene and seek explanations when South Africa fails to ratify critical international human rights instruments, such as the International Covenant on Economic, Social and Cultural Rights, the Protocol to the African Charter on Human Rights and People’s Rights, and the Rome Statue on the International Criminal Court.
Facing the Future
The SAHRC current mandate expires on the 30 September 2002. During its lifespan, the SAHRC has accumulated a wealth of experience and information. This knowledge needs to be amassed to benefit the future members of the SAHRC. For this reason the SAHRC will embark on its own evaluation.
A plea leveled at Parliament was to consider the Corder Report on Oversight and Accountability with some speed. This is called for as the deliberations contained therein would assist greatly in constructing an environment for a more credible and independent operation of the Commission.
Finally, Dr Pityana told the Justice Committee that failure to provide an adequate budget for the Commission has meant that the Commission had to advise the Minister of Finance, with copies to the President, the Speaker of National Assembly, and the Minister of Justice that the Commission will not be able to execute its functions in relation to the following statutory responsibilities:
The Promotion of Access to Information Act, 2000;
The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000;
The Public Finance Management Act, 1999; and
Section 184(3) of the Constitution.
The Chief Executive Officer of the SAHRC, Ms L Mokate, presented the budget for 2001/2. She spoke of the resource needs required for the next three years if the institution was to fulfill its additional statutory obligations.
Mr J Jeffrey (ANC) asked what had happened to the claims that came before the SAHRC as Ms Mokate said that 4715 claims had arrived last year.
Adv Leon Wessels, an SAHRC commissioner, said that they received complaints via all forms of communication. Some of these claims were rejected on the basis that they did not involve human rights matters. If a claim was rejected, that person had an appeal against such rejection. Also, the SAHRC has a policy of referral, so claims are not just rejected but instead get referred to the correct Department or organisation.
Imam Solomon (ANC) believed that some of the functions carried out by the SAHRC and some of the claims it received should be functions of various Ministries. His question was how far the SAHRC ran with any one claim and to what extent the SAHRC worked with these Departments.
Dr Pityana said that the SAHRC sometimes works with other organisations or Departments but in some circumstances these other Departments are the respondents. However, as he said before, if the case should properly be dealt with by another organisation, then the SAHRC refers the matters and accompanies the individual to this other body.
Mr J Jeffrey (ANC) asked about the status of the SAHRC Annual Report and whether they indeed have one yet.
Dr Pityana said that since the Public Finance Management Act came into practice, the SAHRC needs to publish an annual report with the Auditor-General’s statement. The SAHRC’s annual report will only be considered by the Auditor-General in June. After this the report needs to go to SCOPA (the Standing Committee on Public Accounts ) after which the annual report will be published in August.
Adv de Lange said that this created a difficult situation where the Committee needed information to do its job properly but could not get access to this information. The whole process therefore needed to be initiated earlier so that the annual report would be ready when it was needed.
Mr J Mgidi (ANC) said that Dr Pityana’s initial speech seemed to indicate that the SAHRC did not enjoy as much respect nationally as it did on an international level. Mr Mgidi wanted to know what ‘South Africa’ did or did not do that made the SAHRC feel this way.
Dr Pityana said that in the international arena the South African Human Rights Commission is regarded as the model for human rights organisations all over the world. The SAHRC is not being interfered with, but Dr Pityana said that there were a number of subtle ways in which the independence of the SAHRC was being eroded. The way in which the SAHRC is placed within the protocol of Government effectively prevents it from gaining the respect it needs to do its job. The SAHRC writes correspondence and receives no replies, it raises issues and these are not engaged. In the process of evaluating itself, the SAHRC will compile all its correspondence to show how it was treated and attitude with which it was met. This kind of treatment was not like that which it received anywhere else in the world.
Mr Mgidi said that some of the claims dealt with by the SAHRC looked like issues typically dealt with by other organisations specifically the Commission on Gender Equality. He asked if there were structures in place for the two to work together. Adv de Lange (ANC) added that this area needed to be addressed and perhaps a kind of ‘one-stop’ shop would do the job best. This ‘one-stop’ shop would serve as platform for people to bring all manners of claims.
Dr Pityana said that although Adv de Lange’s idea was a good one, it would not be very easy. He said that different claims sometimes have commonalities, but most of the time different procedures are required for differing claims.
Adv de Lange said that he would appreciate it if the SAHRC would look into the matter further and include an evaluation of the idea in their final report.
In reply to Mr M Mzizi (IFP) asking how the SAHRC had offices if they could not rent in their own name, Dr Pityana said the practice at the moment was that the needs of the SAHRC were met through the Department of Public Works. The Department finds the property and rents it to the SAHRC. This arrangement did not harm the SAHRC but it was not the ideal situation and it had implications in relation to the independence of the organisation.
Adv de Lange questioned how this was being done as the SAHRC still managed to do the jobs it was required to do by Parliament.
Dr Pityana said that it threatened the operational autonomy of the SAHRC as it could not decide where it would have an office. In addition to this the empowering Act allows such operational steps to be taken.
Adv de Lange said that this was not allowed and used a hypothetical situation as an illustration. What would happen if the SAHRC decided to set up an office where it really was not practical, what recourse would the State then have to prevent this.
Dr Pityana said that independence such as this was allowed in the UN provisions upon which the SAHRC was founded. To this Adv de Lange (ANC) replied that in fact the SAHRC was founded in South Africa through the promulgation of an Act of South Africa’s Parliament. He added that this form of independence did not exist anywhere in the world.
Dr Pityana then gave examples of other jurisdictions where comparable human rights organisations enjoy an independence such as the one he felt the SAHRC should have. The examples he gave included Sweden, Australia and Uganda. He said that the empowering Act and the Constitution obliges the independence of the SAHRC. To ensure independence there should be consultation between all parties. What this meant was that when SAHRC asks for R13 million and gets R4 million, then it should be given reasons for the decision and told which functions it is to marginalise in light of the shortfall or cut.
Mr Mzizi noted that the SAHRC deals with child sexual offences as does the Commission on Gender Equality. He asked what mechanisms were in the place to make sure that different organisations were not doing the same work.
Ms Mabusela said that the SAHRC deals independently with child sexual offences as they feel that often matters are not properly investigated and victims of such offences do not receive proper support. The SAHRC’s function in this area is a lot broader in that it has hearings to find out how people feel about child sexual offences and other problems and how these matters can be dealt with. It also advises the judiciary on matters relating to child sexual offences. The SAHRC also does interface with organisations such as the Commission on Gender Equality.
Dr Pityana told the Committee that it was interesting to see how highly respected South Africa’s effort to give effect to socio-economic rights is. He said a lot of focus is placed on how Government takes responsibility for the fulfilling of these rights. The international community looks to South Africa with admiration as the process is a unique one which reflects the most revered part of the South African constitutional dispensation. Dr Pityana said the courts are beginning to recognise the SAHRC’s experience in the field and have on numerous occasions called on this expertise in coming to a judgment.
Adv de Lange raised his concern with the Promotion of Equality Act. He commented that the Justice Portfolio Committee was not involved with this Act in any meaningful way. After going to the courts the Committee has seen the application of the Act starting to cause problems. The Act requires that before being able to hear a case with equality implications, the magistrate has to undergo training for that purpose. To require this is a problem as nowhere in the country are magistrates ready to deal with the new legislation. The current position would result in the competence of magistrates to hear certain cases being questionable. Training also costs money and time, while all the time there is a need to complete equality cases and develop a crystallised body of law.
Ms N Mahlawe (ANC) said a lot of money had been spent on training and education and asked how the SAHRC measured how much work it had done by means of these programs.
The response was that the SAHRC conducted surveys and education and training programs on human rights. He said that the assessment of human rights training is very difficult and was a problem experienced internationally. The SAHRC focuses on anti-discrimination in the SAPS which has its own internal training unit. It also focuses on violence against women and children.
The advocacy component is the key element to reaching farming communities which are otherwise difficult to reach as a result of budgetary constraints.
Ms Mahlawe asked about the Xenophobia Rollback campaign that the SAHRC was presently engaged with and wanted to know the manner in which the problem was being approached.
Dr Pityana said that the SAHRC was looking at xenophobia in a holistic manner. At present the different departments of Government are at odds. The Department of Home Affairs lets them in but the Department of Health makes no provision for these people. At present the SAHRC is trying to reach those who carry out policies. Also, the Department of Home Affairs is open to the starting of refugee camps but the matter of whom will take responsibility remains undecided. Home Affairs thinks that a Refugee Council will help but at present there is no way in which a refugee council would be able to come before the Government.
Adv de Lange then raised section 49 of the Criminal Procedure Act. This section deals with the use of force in effecting an arrest and has long been a sore point for the Chair.
Dr Pityana said that the SAHRC was assured that the new section 49, namely that with more stringent requirements for the justification of the use of force, would be implemented. However, the SAPS remain reluctant to implement it.
Imam Solomon said that a Cape Refugee Forum had been established and wanted to know if the SAHRC communicated with this body.
Dr Pityana replied that the SAHRC was instrumental in the formation of refugee forums throughout South Africa but the problem remains the incongruence in Government in relation to refugees. The SAHRC however does not have the resources to engage the refugee problem properly.
Adv de Lange raised the topic of the accountability of institutions. He thought that there are big problems with the budgets of institutions and that there should be a more systematic way a looking at the budgets of state institutions, especially Chapter 9 institutions. He referred to Dr Pityana’s comment that independence should be upheld. He agreed saying that Parliament should not be able to directly determine the budgets of institutions which are meant to be independent. However, the SAHRC still needs to come before Parliament and account for its spending. If spending is being done unreasonably then there are many ways in which institutions can be held accountable and made to comply. Some of the mechanisms that ensure accountability and compliance are the media, the Human Rights Committee, the Public Finance Management Act and other organisations. He added that Parliament should be able to give some input on the business plan of the SAHRC.
Adv de Lange adjourned the meeting.