ATC110419: Briefing by South African Human Rights Commission on its report on Investigation into issues of rule of law, justice & impunity arising out of 2008 public violence against non-nationals
REPORT OF THE PORTFOLIO COMMITTEE ON SOCIAL DEVELOPMENT ON THE BRIEFING BY THE SOUTH AFRICAN HUMAN RIGHTS COMMISSION ON ITS REPORT ON THE INVESTIGATION INTO ISSUES OF RULE OF LAW, JUSTICE AND IMPUNITY ARISING OUT OF THE 2008 PUBLIC VIOLENCE AGAINST NON-NATIONALS, DATED 19 APRIL 2011
Following the outbreak of the public violence against non-nationals in May 2008, the South African Human Rights Commission (SAHRC) conducted an investigation to uncover underlying causes that led to the outbreak of violence in areas that were affected. The SAHRC, based on the findings of the investigation, formulated recommendations that require intervention from different government departments.
On 24 November 2010, the SAHRC briefed the Portfolio Committee on Social Development on the findings of the investigation and the recommendations that particularly have implications on the social development sector.
2. Presentation by the South African Human Rights Commission (SAHRC)
2.1 Background information
As introductory remarks, the SAHRC reported that, due to the scale of the outbreak of violence against foreign nationals across South African townships, it was difficult for the Commission to respond to the outbreak because this was not within its mandate. The Constitution of the Republic of South in Section 184 specifies the functions of the SAHRC to:
(a) promote respect for human rights and a culture of human rights;
(b) promote the protection, development and attainment of human rights; and
(c) monitor and assess the observance of human rights in the Republic.
To execute the aforementioned, it has the powers to perform the following:
(a) investigate and to report on the observance of human rights;
(b) to take steps to secure appropriate redress where human rights have been violated;
(c) to carry out research; and
(d) to educate.
It was explained that neither South Africa nor the SAHRC were prepared to respond to the crisis of that magnitude. There was deep mistrust between the South African government and the foreign nationals. The Commission had to coordinate and facilitate dialogue between the stakeholders and this required it to go beyond its mandate. It was explained that it was the responsibility of government to facilitate the dialogue between the stakeholders and intervene in the crisis.
The Commission was also faced with the uncertainty regarding standards it had to apply in evaluating conditions at the affected areas. There was also inconsistent monitoring of the threat of violence against non-nationals by government, particularly the South African Police Service (SAPS), despite evidence that showed that the threat was looming over the years.
In the aftermath of the crisis, the Commission developed a policy paper to guide its response and other countries’ response to future similar crisis. In addition, as a proactive measure, it continues to monitor the implementation of recommendations it made in its report. It forwarded follow up requests to all the government departments for written submissions on the progress made in the implementation of the recommendations. On 6 July 2010 it sent a letter to the Department of Social Development requesting feedback on the recommendation, however by the time of the briefing, it had not received a response. The Commission also participated in the multi-stakeholder NGO forums, such as the South African Council of Churches (SACC) civil society forum.
It was further reported that during the crisis, the Rule of Law was undermined because of the lack of prosecution against perpetrators of violence. Sixty two non-nationals died and approximately between 120 000 and 200 000 were displaced. The Commission therefore raised a concern that perpetrators were not held accountable even though this was a clear demonstration of violation to human rights. This is despite the fact thatSouth Africa is a signatory to the 1951 United Nations Convention to the Status of Refugees, 1965 United Nations Convention on the Elimination of All Forms of Racial Discrimination, 1981 African Charter on Human and Peoples’ Rights and the 2005 African Commission Resolution on Ending Impunity in Africa. These international laws oblige South Africa to criminalise hate crimes. However, South Africa has not passed legislation to that effect.
The Commission reported the following findings from its investigation:
- There was little institutional memory of similar social conflicts prior to 2008, such as in Masiphumelele informal settlement. There had been many instances of xenophobic attacks since 2001 but they were not recorded. This is despite the fact that in 1998 the Department of Social Development noted a high degree of xenophobia against illegal immigrants. It was only in 2008 that the Department drafted a concept paper upon exploring the impact of xenophobia.
- Prior to 2008, no mechanism existed to monitor the xenophobic climate. The lack of documentation of evidence resulted in the government not having any early warning systems, for example, the South African Police Service (SAPS) had no system to detect whether the crime reported had any potential xenophobic element.
- Members of other nationalities were excluded from community structures such as the Community Policing Forum (CPF). Even though non-nationals would be invited at such meetings, they reported that they felt unwelcome at such meetings. They also reported that they often could not understand community announcements, as these were made in languages they were not adept in.
- There was poor quality of relationships between local residents and key officials involved in governance of informal settlements.
- Prior campaigns failed to prevent violence against non-nationals.
To address the aforementioned findings, the Commission identified the following recommendations to the Department of Social Development:
- Compile a documentary record of institutional learning during and after the May 2008 attacks.
- Keep early warning records and (a) be clear about the purpose of the activity so that efforts are not duplicated or redundant, (b) monitor and evaluate the early warning mechanism as a tool to prevent civic violence, and (c) make all levels of government aware of it.
- Through a Social Cohesion Group, arrange a workshop between parties to community mediation and proactive reintegration initiatives throughout the country to establish some best practice guidelines.
- Ensure that the Social Cohesion Working Group deliberates and nominates a lead department to develop provincial conflict resolution capacity for the purpose of developing, restoring and maintaining social cohesion in areas affected by social conflict.
- It should realise the potential role of local institutions in mitigating or inciting violence and make provision for improved oversight on such bodies.
- It should place more emphasis on the importance of meaningful disciplinary or judicial outcomes where community leaders obstruct social cohesion through negligent indifference, corruption or personal agendas.
- In nation building policy, it should acknowledge and mitigate the implicit risk of cementing prejudices against non-nationals.
2.4 Recommendations to the Portfolio Committee on Social Development
The Commission recommended that the Committee should exercise oversight on the progress made in implementing the recommendations by:
- Following-up on the establishment of a Social Cohesion Group and whether workshops have taken place.
- Ascertaining which department has been designated with the task of developing provincial conflict resolution capacity.
- Following-up on the finalisation and implementation of the Department’s Social Cohesion Policy.
- Calling on the Department to provide feedback on the progress and implementation of its recommendations of the Population policy, particularly with reference to social cohesion.
- Determine if the Department has engaged with the Department of Home Affairs on immigration matters.
- Liaise with the Portfolio Committee on Justice and Constitutional Development on legislation pertaining to hate crimes.
- Responses from the Department of Social Development
The Department indicated that it had developed a concept document to ensure that Social Cohesion is mainstreamed and integrated into the Integrated Development Plans (IDPs). The concept document was circulated to the municipalities and it was to be presented to the Social Cluster on 15 December 2010.
The Department informed the committee that the Department of Arts and Culture is the lead department of the Social Cohesion Task Team. The Department of Social Department participates in the task team through its Population Unit. The Population Units both nationally and provincially will implement the recommendations made by the SAHRC. It was however pointed out that these units do not have adequate resources to conduct a research on social cohesion matters.
The Department, at the time of the briefing was finalising the National Community Development Policy Framework. It had also developed systems for community profiling. It also developed guidelines for Community Development Forums. These are aimed at ensuring that communities will be meaningfully involved in decision making processes.
The Department conducted a case study in Bapsfontein in Gauteng on the re-integration of non-nationals to the community. The case study revealed that for re-integration to be a success it requires full involvement of non-nationals whilst not neglecting the needs of the local people.
Recommendations from the Portfolio Committee on Social Development
- In the light that South Africa is a signatory to the international obligations that advocate for the elimination of all forms of human rights violations, it is imperative that the justice cluster puts in place legislation that ensure that all forms of hate crimes are criminalised.
- The government, particularly the justice and social clusters should have regular reviews on the progress made by relevant departments in implementing SAHRC recommendations and on any other policies aimed at addressing the issue of migration and social cohesion in South Africa.
The committee endorses the recommendations made by the SAHRC to the Portfolio Committee on Social Development for implementation.
The outbreak of violence against non-nationals revealed that South Africa needs to strengthen its social cohesion policies as part of its nation building. The change to a democratic government opened up opportunities for South Africa to forge partnerships with other African countries. In addition, political and economic instability in some African countries forced their citizens to migrate to neighbouring countries. The result has been that South Africa has become one of the preferred receiving countries. As a result it has been experiencing a high number of non-nationals migrating to the country. This therefore calls for the South African Government to develop policies and mechanisms to deal with this challenge. As shown by the recommendations of the SAHRC, social cohesion is critical in dealing with this challenge. Therefore, the social development sector has a crucial role to play in ensuring that social cohesion policies and mechanisms are strengthened.
Notwithstanding the aforementioned, the committee recognises the important role played by the South African Government, the Southern African Development Community (SADC), Economic Community of West African States (ECOWAS) and African Union (AU) in stabilising Africa through international agreements.
Report to be considered
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