South African Human Rights Commission update on its work; Convention Against Torture & & Optional Protocol to Convention Against Torture

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Justice and Correctional Services

25 June 2008
Chairperson: Mr Y Carrim (ANC)
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Meeting Summary

The South African Human Rights Commission provided a progress report on the matters identified as challenges in the SAHRC’s Annual Report 2006/7. These included South Africa’s non-compliance with various international conventions dealing with human rights.

The Committee was concerned that the Department of Justice and other departments lacked the political will to have these international agreements on human rights ratified by Parliament. After some interrogation of this matter it was decided that it was key was for the National Assembly to adopt an urgent deadline and road map for the way forward which departments would have to observe in ensuring all aspects of these conventions could be met.

Also discussed were the current and upcoming SAHRC commissioner vacancies and the need for government movement on an anti hate speech bill which the SAHRC had developed, the adoption of regulations for the Equality Act, the need for an Information Commissioner to meet the needs of the Promotion of Access to Democracy Act and increased collaboration amongst Chapter 9 institutions.

The SAHRC provided a briefing on the Convention Against Torture (CAT) and the Optional Protocol to the Convention Against Torture (OPCAT). These were discussed in terms of their purpose, requirements and the means by which other states had successfully implemented them. It was strongly recommended that South Africa make haste with ratifying these important human rights treaties.

The SAHRC then discussed the xenophobic attacks which had taken place in South Africa in May. It highlighted a number of potential responses and programs in place to deal with this issue. There was discussion of the root causes of the recent violence and the potential solutions to it. There causes were complex, encompassing historical, economic, political, racial factors. An effective response would need to be multifaceted in order to address these various different component causes.

Meeting report

The Chairperson begun by discussing issues which the Committee had asked the South African Human Rights Commission (SAHRC) to follow up on. He commented that in general the Committee had been pleased with the progress made by them. It was the opinion of the Committee which had observed the SAHRC’s work over the last nine months that it had performed well. Nevertheless, the Committee felt that some of the SAHRC’s targets had been a short sighted. He had invited the SAHRC to respond to the matters identified by the Committee at their last encounter (see SAHRC response document). He pointed out too that the Committee’s term would be coming to an end soon, as that of the Minister and Deputy Minister of Justice due to the upcoming general election early in 2009. The Committee would be appointing someone to see that its work was carried on in the next Committee. About the issue of why South Africa had not yet ratified the international conventions dealing with human rights, the Chairperson asked for clarification on this.

The department representative present said that the Department was still undergoing many internal processes which would affect the ratification of human rights treaties and protocols. In addition, the process of ratification is a clustered one so that the responsibility for it does not fall on one department alone. Admittedly, the speed with which the process had been managed had not been adequate enough. Assurance was given that as soon as the Social Cluster had met and agreed upon its strategy on this, the Committee would be notified of a deadline for delivery.

Mr Jody Kollapen (Chairperson, SAHRC) noted that the commission recognized some of the complexities which had delayed South Africa’s ratification of the International Conventions on human rights. He indicated that the right to work is an example of an issue which appeared in the international covenant but not in the Bill of Rights. This meant that if they were to ratify the international covenant there would be an inherent discrepancy. This was an issue which was being addressed. He indicated that it was an embarrassment that South Africa had not yet ratified the International Covenant on Economic, Social and Cultural Rights (ICESCAR). Whether it was fair or not, South Africa was looked at as a leader with respect to human rights issues and its lack of progress in ratifying a number of important international treaties and protocols was undermining this. He urged that this process be significantly speeded up.

Adv Tseliso Thipanyane (CEO: SAHRC) pointed out that according to the South African government the country remained in the process of ratifying these agreements. He indicated skepticism at this official doctrine, given that the covenant had been signed in 1998. At the time the SAHRC had been informed that the delay was due to the Department of Labour (DOL) not having submitted its required documentation. In addition to this covenant, he indicated that there were still a number of other human rights covenants which had not as yet been ratified by South Africa. An important one of these was the International Convention on the Protection of the Rights of all Migrant Workers and members of their families. This convention was particularly pertinent in light of the recent xenophobic attacks which had occurred in South Africa. In addition he highlighted the need to ratify the Optional Protocol to the Convention Against Torture (OPCAT). He pointed out that OPCAT would be the subject of discussion of one of his colleagues later in the proceedings. In addition, he indicated SAHRC’s concern that South Africa had not prioritised its treaty supporting the obligations. There remained many reports which were outstanding.

South Africa was also ignoring letters from special organizations. This included for example one by the Committee on Elimination of Racial Discrimination, which in 2006 had recommended that South Africa adopt an anti-hate speech bill. South Africa was given a year to respond and to this date had still not done so. It was imperative that the Committee review its progress given that the third parliamentary term was soon coming to an end. The SAHRC indicated that it stood ready to assist government on this as it had done in previous years. With regard to xenophobia, he pointed out that at the World Conference against Racism, held in South Africa in 2001, one of the key findings was that South Africa needed to formulate a national action plan to combat racism and xenophobia. Disappointingly, this too remained as yet unachieved. There was an urgent need to speed up these various processes.

Mr Carrim asked to what extent the problems described by Mr Thipanyane could be attributed to problems of capacity, technical and political issues, or in fact issues of will / empathy. He indicated that it was his belief that capacity and will were linked. In light of limited capacity, people were forced to prioritize. This raised the question of which areas had been chosen as priorities and how. The Department was thus answerable for the areas which it had not given priority.
He asked whether the SAHRC had been having regular meetings with Department and what had been the outcomes of these.

Mr Thipanyane responded that they had been meeting with the Department and that if the Committee recalled in 1998, the Commission had been involved in helping the Department of Justice to draft the National Action Plan for human rights. This report had highlighted the need to sign the various international conventions discussed earlier. Ensuing from this report, the SAHRC has consistently been involved in tracking the progress of the various departments in meeting their obligations for this. In addition the SAHRC had consistently written to the Departments and met with the Directors General (DGs) - current and previous. He had personally been involved in writing to the DGs of Justice and Foreign Affairs in April 2008, raising concerns about the failure of the country to compile a report accordingly. In addition, he had requested a meeting where the SAHRC might be able to offer its assistance. In 2006 regular meetings were held between the SAHRC the Department of Justice (DoJ) and Department of Foreign Affairs (DFA) about ratifying the international conventions but that these had since ceased.

Mr Carrim said that whilst the Committee recognized the challenges, it nevertheless found the situation unacceptable. He asked that the Committee to draft a reasonable time frame.

Adv Carol Johnson (ANC) responded that she thought it was a good idea to clarify a time-frame and have the Department report back to the Committee on what progress had been made. In addition, in terms of international obligations and reporting on these, the South African report on the Convention on the Rights of the Child also remained outstanding. It was her understanding that this was about five years overdue and that it ought to also be given urgent attention.

Mr J Jeffrey (ANC, Parliamentary Counsellor to the President) responded that it was not only the Minister of Justice involved in expediting these matters and that critiquing this department would not solve the problem. He thought it was important to find out from the DOJ which were the other departments involved. He thought that it might be a good idea to get Parliament to issue some form of time-frame for the various ministries / departments to comply with their obligations.

Mr Carrim pointed out begrudgingly that these ideas would all require additional meetings and bureaucracy.

Mr Jeffrey responded that he thought this would not automatically need to be the case. The process could be considerably streamlined were the Committee able to assess which departments were at fault and consult with the relevant parliamentary committee chairpersons. A deadline could then be decided and drafted within the National Assembly. The key thing was to adopt a road map for the way forward and an indication of when these proposals would be finalised.

Mr Carrim proposed that the Committee set the deadline for the week of the third of August, bearing in mind that Parliament would rising in 48 hours and reconvening on 27 July.

Ms Johnson asked whether Mr Carrim thought the Convention on the Rights of the Child report should be dealt with in the same manner or separately. She reiterated her concern that it was now five years overdue and said that in fact the 3rd children’s rights report should by now have been submitted.

Mr Kollapen indicated that within the context of preparing a report, he thought it was important to understand the genesis of preparing a country report. How does it get prepared, how does parliament get involved and how should the relevant bodies participate? He indicated that there had been occasions when he had attended meetings in Geneva, where he was required to discuss country reports for South Africa which he had not seen before.

Mr Jeffrey said whilst this was of concern, he thought it best not to delay the process further but instead to push ahead with rapidity on the matter of preparing a report.

Mr Carrim indicated that with regards to a number of proposed legislative recommendations in the South African Human Rights Commission’s Annual Report 2006/7, the Committee indicated that it would not be able to deal with further legislation as it was already over stretched. He reiterated the need to have the bill in question passed and asked why it had not been possible for the Department to engage the SAHRC on the draft which had been tabled.

Mr Sello Chiloane (Department of Justice) said that indeed there had been a draft which had been prepared by the department some time back. There had also been a review of this draft in order to deal with the problems identified. In correspondence with the legislation section, he had established that they had already drafted a memo discussing proposed amendments. This would be sent to the SAHRC and other concerned bodies.
Mr Carrim pointed out that the members of the SAHRC governing body would all be replaced by September 2009 and members of the Department would be going. He asked if it was reasonable to expect a deadline for a meeting between the DOJ and the SAHRC prior to the end of August. He indicated that Mr Jeffrey would be responsible for helping to allocate deadlines.

Mr Kollapen said that the SAHRC would be presenting a draft bill today to the Department. While it might not be as astutely drafted as by DOJ, the SAHRC was interested in the DOJ’s thoughts and input. 

Mr Carrim thought that this would be a good idea. He would be speaking to the Minister in the National Assembly and would discuss the Committee’s proposals.

Mr Thipanyane indicated his approval. He pointed out that the SAHRC had access to the laws of over one hundred human rights commissions throughout the world and would gladly share their expertise.

A department representative said that delays had been experienced as a result of ensuring that the bill was in line with the Constitution. In addition, delays were being experienced as a result of attempts to factor in on-going and specific concerns raised by bodies such as the SAHRC. Furthermore, decisions had had to be made about whether certain issues could be dealt with legislatively or not. These were the main reasons for the delays which had been experienced. He pointed out that he was not trying to justify the lengthy period of time taken to submit the bill. Instead he acknowledged that it had taken a very long time but that he would like to assure the Committee that they would be able to comply with the deadline decided in this meeting. 

Mr Carrim said that the issue of the vacancies had been examined by the SAHRC. He said that he had been assured that it was being addressed. This was an issue not of political will but rather practicality. 
Mr Kollapen responded that whilst the SAHRC accepted in good faith that the Ministry was attempting to deal with this issue, it was nevertheless concerning. He pointed out that the SAHRC is part of the international co-coordinating committee for similar institutions worldwide. They were required to be accredited every two years and their accreditation status had been reviewed towards the end of the previous year. The SAHRC currently held group A status because they were compliant with the Paris principles in terms of independence and compliance with law. During the accreditation meeting it was pointed out that the SAHRC is non-compliant in that the law states that they should have five full time commissioners while at the moment they only have four. The consequences of a drop down to B group status could mean that the SAHRC would be unable to participate in UN structures as well as a host of other similarly bad consequences.

Mr Carrim said that the failure to address this issue fell largely with himself and Mr Magwanishe who had been extremely busy and unable to give it the necessary attention it required.
Mr Carrim said that given the changing power structure in government changing soon, it was not advisable to make major decisions. He asked whether as a compromise perhaps they could extend the office of the current commissioners by six months. He asked Ms Johnson whether she thought this was legally possible.

Ms Johnson replied that she thought this would be possible as she recalled a precedent having been set in another committee.  

Mr Kollapen said that this would probably require legislative amendment.

Mr Carrim said that members who returned should push to ensure that the new committee seeks to appoint the new commissioners within the first three months of office.  Failing this, consideration would be given to extending the office of the commissioners.

Mr Thipanyane said that they would also need to confer with the National Treasury to ensure that funds would be available for this. 

Ms Z Majodina (SAHRC Commissioner) asked about the plans which commissioners may have made and whether this would be factored into decisions to lengthen the life of the current commission.

Mr Carrim said that Ms Majodina had a good point and they would certainly need to consult with the SAHRC before going ahead.
Mr Magwanishe said that he thought they would have to assess this matter very carefully, bearing in mind the length of parliamentary terms and other time issues of this sort.

Adv L Joubert (DA) asked for clarification on the decision made about the vacancies.

Mr Carrim replied that they would confer during the July constituency period and they would take action on this matter thereafter.

Ms Johnson said that they had been approached by civil society and other groups with regard to point 6.6 in the Report of the Portfolio Committee for Justice And Constitutional Development on the South African Human Rights Commission’s Annual Report 2006/7. They had also met with the Open Democracy Advice Centre (ODAC). There had been agreement on the urgent need for an Information Commissioner. She asked for a breakdown by the SAHRC on the financial implications of this.

Mr Thipanyane pointed out that they could comply with this but that it would ultimately depend on the National Treasury.

Mr Magwanishe said that with regard to the need to finalise regulations for the Equality Act (PEPUDA), the Department had prepared draft regulations. There was however a requirement that any regulations with financial implications had to be submitted to the Minister of Finance. The Minister had suggested that the regulations would have serious implications and that they would need to be reformulated or the Act amended.

Mr Thipanyane stated that while he respected the need to follow regulated requirements, were the lengthy time periods really necessary?

Mr Carrim then discussed the pressing need to address the ongoing concern with the Equality Courts. He made the point that this would be pushed high up the agenda and would be dealt with shortly.

Mr Kollapen replied to point 6.10 on increased cooperation with other Chapter 9 Institutions indicating that they had been working with such institutions. They had been working with the Public Protector on issues pertaining to ESKOM, as well as with the Competition Commission board on the recent bread price saga. Furthermore they had been involved in work with others with regard to the xenophobic attacks of late.

Mr Carrim said that he had to leave the meeting early and that Mr J Sibanyoni (ANC) would be taking over as chairperson of the Committee meeting.

Mr Sibanyoni handed over to the SAHRC for their presentation.

Mr Kollapen said that there has been a lot of contestation on certain matters in recent times and that the SAHRC had found this difficult. The Commission could not have predicted issues like the recent xenophobic attacks. He referred to how the country’s decisions affected the region and its peoples. Discussing the xenophobic issue, he made the point that the plan to move people from the refugee camps to residential areas was a problem. There was a large regional component to this problem which ought to be addressed. Complying with minimum human rights standards in camps was an issue of high priority. Xenophobia was exacerbated by the country’s poverty and human rights issues, which many South Africans felt ought to be prioritized towards them before foreigners. Complexities of this sort made the Commission’s work difficult. He said that it was ironic that as recently as April, the United Nations human rights council had looked to South Africa to share its best practice with regards to the issue of xenophobia. The situation had obviously rapidly changed with the rampant xenophobic attacks which took place in May. He felt that this reflected once again the problems of translating SA’s excellent Constitution into practice.

SAHRC had of late come to the conclusion that it ought to escalate its communication both with Parliament and with the broader community. To this end the Commission had produced a magazine (Kopanong) as well as a Parliamentary Update document aimed at informing parliamentarians about the work of the SAHRC, and a Code of Good Practice document. The latter was intended for all Chapter 9 organizations with a view to informing appropriate conduct and behavioral practice. The Commission was soon to release a number of other reports dealing with issues such as farming, hate speech and housing issues. He noted that one of the problems encountered had been that the SAHRC had often been over-ambitious in drafting reports. He pointed out that with regard to inflammatory statements made by high-ranking government officials in recent times; it was not the SAHRC’s position to act as a “thought police” unit in these matters. He nevertheless urged that whilst the SAHRC welcomed dissenting opinion, it did so within the framework of the Constitution. It was necessary that society as a whole upheld the Constitution and not just bodies such as the SAHRC. To this end the Commission remained committed to upholding the constitutional mandate to which it subscribed. The Commission’s general practice was informed by seeking to advance the “constitutional contract”. It was the opinion of the SAHRC that the xenophobic attacks and the inflammatory utterances by government officials were in opposition to this purpose and for this reason the Commission had felt it necessary to speak out. The Commission had also recently begun working within the business community and had been involved in investigating human rights abuses by a large mining company. There were some technical and logistical matters which would be discussed by the CEO. 
Mr Thipanyane asked to what extent Parliament would defend the Commission from the rampant attacks it had received in the press. He said that statistically they had made considerable efforts to improve the accuracy and credibility of their statistics. Naturally statistical inputs were dependent on human and software components. With regard to preparing reports, there remained an issue with preparing reports in a timely fashion. He raised a number of other technical issues of this sort.

Mr Kollapen pointed out that a lot of the issues discussed by both himself and Mr Thipanyane were discussed in the Committee’s report in sections B1 and B2. These reports highlighted both technical issues and achievements and general issues.

Ms Majodina went on to discuss the issue of xenophobia. She said that the SAHRC had always been involved in xenophobic issues. She pointed out that there had been some 200 000 displaced people in the latest xenophobic attacks. The main issue had been preserving the safety of displaced people as well as relocating them. A number of NGOs had been involved in efforts to help the situation.  She thought it would be best if the SAHRC coordinated its efforts with civil society bodies to provide a more cohesive approach. Having come to a point where these people were now housed in police stations and shelters all over the country, she pointed out that there were new challenges. The idea of re-integrating foreigners would yield problems. There was very little willingness on the part of communities to reaccept displaced foreigners. In the long run government would need to go back to the drawing board and review its Immigration Act. For example, the Zimbabwean crisis remained a big problem as yet not dealt with. She pointed out that they could not expect only one department to deal with immigration. It would need to be a multifaceted approach, in order to live up to the constitutional ideal to which South Africa subscribed. South Africa stood to gain from comprehensive discussions with countries in the region. It was important to note that xenophobia was a global issue and not just a South African one. An outstanding issue was the issue of hate speech and when it would be criminalized. Again there was a need to ratify international conventions on this. This was a pressing issue for human rights. Again she re-iterated the regional and international aspects of this problem and the need for SADC to come on board. She pointed out that South Africa ought not to duck its responsibilities.
Mr Kollapen said that the Minister of Justice had invited the SAHRC and the Gender Equality Commission to a meeting to discuss the issue of advocacy. He said that he thought it likely that the issue of advocacy related to xenophobia would be part of the agenda. It seemed there was a possibility of a concerted effort between these two Chapter 9 organisations and the DOJ. 

SAHRC on the Convention Against Torture & Optional Protocol to Convention Against Torture
Ms Judith Cohen, SAHRC Head of Parliamentary Programme, provided an overview of the Convention Against Torture (CAT) and Optional Protocol to Convention Against Torture (OPCAT) and South Africa’s obligations for these. South Africa did not have a specific crime of torture and common law crimes were usually used to prosecute perpetrators of torture. The OPCAT was a preventative measure against torture. It was essentially a request to states to establish a regular preventative measure. It includes various specific measures. South Africa should ratify OPCAT to demonstrate commitment to anti-torture the world over. The country was looked at to set an example in matters of human rights for the rest of the region and throughout the world. The OPCAT mechanisms did work; other countries had successfully implemented them. The OPCAT measures were often tweaked to suit specific countries and there was a tendency to rely on volunteers in a lot of cases. The SAHRC had been involved in a number of measures meant to develop the CAT and OPCAT measures in South Africa. This had involved civil society groups. The SAHRC had set up monitoring mechanisms in the wake of the recent xenophobic attacks. They were pleased to have been informed that these were compliant with international standards despite this not having been their intention.

Ms Johnson asked for clarification from the DOJ if there was in fact a draft bill which criminalises torture. She said that she had not seen one and was not aware of its existence. In addition she asked why South Africa had not yet ratified OPCAT in light of the country’s declaration that there were no political hurdles in the way of this.

The inspector  said that in terms of the OPCAT, the existing systems of oversight which South Africa had could easily be adjusted to meet the preventative requirements described by OPCAT. About 80% of detentions in South Africa were done so in detention centres, which was in compliance with the OPCAT protocols.

Magistrate Coetzen said that there needed to be a concerted response which included civil society bodies. With regards to the obligation to criminalize torture, he thought this was an opportunity to review legislature and bring it in line with international conventions such as OPCAT. Civil society also had a role to play in reporting on torture.

Mr Kollapen raised an area of concern for him - SAHRC’s documentation said that the government was in the process of criminalizing torture through a new bill. However, the SAHRC had not yet seen any such bill.

Ms Cassiem said that there were processes in place dealing with the ratification of the OPCAT. She was not entirely familiar with the details of this. She asked for a few days to respond to the matters raised.

Mr Sibanyoni commented that he was aware of documentation produced in 2001 with regards to a Rollback Xenophobia campaign. He said that this documentation ought to have had higher prominence. He pointed out that he thought the SAHRC had been silent on various prominent matters in recent times including the claims that Deputy ANC President Jacob Zuma had been a victim of human rights abuse by the press.

Mr Kollapen responded to the double standards claims about the SAHRC, saying that in general the Commission ensured it address all human rights. With regards to Mr Zuma it was the opinion of the SAHRC that he was adequately represented and that the SAHRC did not get involved in matters which were currently addressed by the courts.

Mr Thipanyane discussed recent protests in which members had carried sticks. He said that this was a tricky matter as Zulu people thought of sticks as traditional symbols. Whether these were weapons or a cultural symbol was debatable. The SAHRC did not deal with matters which were being overseen by other constitutional bodies. There was no need to complicate matters of this sort. 
Ms Majodina referred to the SAHRC Chairperson’s discussion on xenophobia, saying that the results of programs to combat these problems took time. There were training programs in place countrywide. These included training and discussions with communities. There was a perception by communities that foreigners were generating crime and taking away jobs. Again these issues were not unique to South Africa. Partnerships were necessary with various different bodies. Most levels of government were getting involved in combating xenophobia, which was encouraging. There was a need for more engagement with communities. The programs which the chairperson had mentioned were still ongoing. Very briefly, the xenophobic attacks could no doubt be linked to the radicalized past which had vilified certain sections of society.   

Mr Sibanyoni asked for clarification on who were considered foreigners. Did this include people from Lesotho for example? He pointed out that white skinned people from England were not considered foreigners and were not subject to xenophobic attacks. This racial element was no doubt a product of the country’s history.

Mr Kollapen said that it would be problematic to ascribe the recent xenophobic violence simply to criminality. The causal factors were no doubt many and varied. In some instances, there has been a “curious basis” by which communities had labeled certain groups of people as acceptable and others as unacceptable. The issue of xenophobia ought to be examined, bearing in mind historical factors as well as the current social and economic context. He pointed out that one of the reasons that immigrants often succeeded was as a result of a burning desire to do so, often fuelled by need. Immigrants who did not want to gain employment might as well stay in their home countries and remain unemployed. It was likely that immigrants would enjoy higher rates of employment than South Africans. South Africa had recently seen racist, homophobic and gender based violence. Xenophobic attacks ought to be seen within the context of South Africa’s apparent difficulty with dealing with the “other”.

Ms Majodina again emphasized her belief that the sort of violence witnessed in South Africa was of a racial nature and linked to the country’s past. Xenophobia was in part an interplay between social, economic and other factors. The most recent attacks had largely been the result of frustrations at high levels of unemployment. The failure to deliver a better quality of life to the country’s impoverished majority had been a major contributing factor. There was also ignorance on the part of many South Africans about the rest of Africa and its peoples. This too had been fuelled by the racist Apartheid regime. That regime had fuelled the belief that South African black people were better than those elsewhere in the continent.

Ms N Mahlawe (ANC) asked whether there was a similar human rights commission in Zimbabwe. She said that she hoped there was because it was certainly needed there. South Africa did in fact have a number of different instruments for dealing with issues such as xenophobia. These included for example, the Equality Courts, about which many people, including state officials like the police, remain unaware. There was an urgent need to increase publicity of the various instruments available to the greater South African public for dealing with such issues.

Mr Kollapen responded that Zimbabwe did not have a similar commission although he agreed that it was needed. He thought the issue of publicizing instruments such as the Equality Courts, was vital. The SAHRC had recently met with the lower courts management committee comprised of four chief magistrates. In the upcoming meeting with the Minister with regard to advocacy, he assured the Committee that the SAHRC would raise the matter of publicity for the Equality Courts.

Mr Thipanyane added that it was the responsibility of government to publicise instruments such as the Equality Courts. This responsibility also required government to translate publicity of this sort into the various national languages. It might be interesting to ask the various government departments how much of their budget was actually allocated towards raising awareness for instruments like the Equality Courts. It might be the case that departments need increased funding for publicity.

Mr Sibanyoni adjourned the meeting.


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