Press Statement at the Conclusion of the Promotion Mission of the African Commission on Human and Peoples’ Rights to the Republic of South Africa


     

    Further to its mandate under Article 45 of the African Charter on Human and Peoples’ Rights (the African Charter) and following authorization by the Government of the Republic of South Africa (South Africa), a delegation of the African Commission on Human and Peoples’ Rights (the Commission) undertook a Promotion Mission to the Republic of South Africa from 03 to 08 September 2018.

     

    This Promotion Mission, the first of such since its last mission conducted in South Africa from 25 to 29 September 2001, aimed at engaging State and non-State actors including organized labour and civil society organizations on the current state of human and peoples’ rights in the country.

     

    The Commission’s delegation comprised:

     

    ·                Honourable Commissioner Solomon Ayele Dersso, Commissioner Rapporteur on the human rights situation in the Republic of South Africa and Chairperson of the Working Group on Extractive Industries, Environment and Human Rights;

    ·                Honourable Commissioner Lawrence Murugu Mute, Vice-Chairperson of the Commission and Special Rapporteur on Freedom of Expression and Access to Information in Africa;

    ·                Honourable Commissioner Rémy Ngoy Lumbu, Special Rapporteur on Human Rights Defenders;

    ·                Ms. Abiola Idowu-Ojo, Acting Deputy Secretary;

    ·                Ms. Estelle Nkounkou, Legal Officer; and

    ·                Ms. Winfred Gakii Mbae, assistant to the Vice Chairperson.

     

    During the Mission, the Delegation held discussions with various State and non-state actors involved in the promotion and protection of human and peoples’ rights in South Africa, including:

     

    ·         The Department of International Relations and Cooperation;

    ·         The Department of Justice and Correctional Services;

    ·         The Department of Home Affairs;

    ·         The Department of Mineral Resources;

    ·         The Department of Labour;

    ·         The Department of Social Development;

    ·         The Department of Health;

    ·         The Department of Higher Education and Training;

    ·         The Department of Basic Education

    ·         The Department of Human Settlement;

    ·         The Department of Rural Development and Land Reform;

    ·         The Department of Traditional Affairs;

    ·         The Department of Small Business Development;

    ·         The Independent Electoral Commission;

    ·         The Information Regulator;

    ·         The South African Human Rights Commission;

    ·         The Commission for Gender Equality;

    ·         The South African National AIDS Council;

    ·         The Congress of South African Trade Unions;

    ·         The South African National Editors’ Forum;

    ·         The New Partnership for Africa’s Development; and

    ·         Representatives of civil society organizations working in South Africa.

     

    The delegation also visited the Kgosi Mampuru Prison, in Pretoria.

     

    The Mission concluded with a debriefing meeting with the Director-General of the Department of International Relations and Cooperation.

     

    After the various visits and exchanges, the delegation notes the efforts that have been made by the Republic of South Africa and other stakeholders towards the realisation of the rights guaranteed by the African Charter and wishes to highlight some of its preliminary findings.

     

    In this regard, the delegation:

     

    General

    ·         Notes the impact of the limitations that the legacies of colonialism and apartheid continue to put on the enjoyment of the rights and freedoms guaranteed in the African Charter and the Bill of Rights of the 1996 South African Constitution; 

    ·         Appreciates the recognition of the Government of South Africa of the structural challenges and some of the lapses experienced in the effort for realizing the promise of the human rights and freedoms of the Bill of Right of the Constitution and those enunciated in the African Charter;

    ·         Recognizes with appreciation the vast opportunities presented by the Bill of Rights and the rights guaranteed in the various human rights treaties ratified by the country and the commitment of the Government to strive in its conduct for living up to the standards these rights set;

    ·         Commends the various legislative, institutional, policy, regulatory and budgetary measures that have been put in place to enhance the promotion and protection of these human and peoples’ rights;

     

     

    Civil and political rights

     

    Administration of Justice

    ·         Notes with appreciation the initiatives being taken towards enhancing the administration of justice including the expansion of the infrastructure of the justice sector, and the establishment of the National Efficiency Enhancement Committee comprising the key role-players in the justice cluster to promote the efficiency and effectiveness of the justice system;

    ·         Welcomes the effort for addressing the spatial disparities in access to justice affecting historically disadvantaged sections of society including through rezoning administrative areas to facilitate access;

    ·         Notes the introduction in the National Assembly of the Prevention and Combating of Hate Crimes and Hate Speech Bill;

    ·         Commends the establishment of the Commission of Inquiry into State Capture;

     

    Women’s Rights

    ·         Appreciates the legal and policy recognition of the gendered nature of the inequalities and conditions of structural oppression facing various sections of society;

    ·         Commends the elaboration of progressive laws, policies and mechanisms for promoting gender equality and gender justice in the political, administrative, economic, social and cultural realms;

    ·         Appreciates the recognition that crime and violence affects disproportionately girls and women and the efforts for addressing the scourge of gender-based violence including through advocacy campaigns and the establishment of a multi-sectoral and multi-stakeholders’ platform;

     

    Institutions for the promotion and protection of human rights in South Africans

    ·         Appreciates the unique place that Chapter 9 institutions and other independent public institutions such as the Public Protector have come to occupy in South Africa’s constitutional democracy.

    ·         Recognizes the indispensable role of these institutions in the promotion and protection of human rights in South Africa and the need for enhanced support and collaboration from government for their strengthened role;

    ·         Welcomes the establishment of the Information Regulator;

     

    Economic, Social and cultural Rights

    ·         Commends the legislative, policy, institutional and budgetary measures that have been put in place for addressing the persisting high-levels of inequality, unemployment and poverty affecting historically marginalized and discriminated sections of society particularly blacks and women;

    ·         Recognizes the initiatives for expanding access to housing and education and enhancing socio-economic wellbeing of the poor and vulnerable groups including through support to small businesses and the informal economy, conscious and deliberate social development measures including various social security and social protection policies and programs;

    ·         Supports the recognition by the State of the imperative of land reform and the on-going initiative to this end for amending Section 25 of the Constitution following democratic processes and legality without endangering agricultural productivity and food security;

    ·         Notes with appreciation the measures taken by the government to increase access to higher education and enhance retention in schools and the accompanying budgetary commitment including through the provision of bursaries to students from low-income households and the improved management of the National Student Financial Aid Scheme;

    ·         Also Notes with appreciation the increased enrolment of women in higher education, and number of female graduates;

    ·         Welcomes the efforts for reform in the extractive industries sector through the draft Mining Charter with provisions aimed at empowering mine workers and communities living in areas of mine operations;

    ·         Welcomes the contribution of South Africa towards the UN treaty on business and human rights as well as the recent expression of interest to provide leadership and collaborate with the African Commission on Human and Peoples’ Rights to facilitate a common African position on the issue;

    ·         Welcomes the Traditional and Khoisan Leadership Bill which aims to recognize Khoisan leadership structures and communities not yet addressed in law and ensure uniformity in the way traditional matters are handled; and

    ·         Also welcomes efforts towards addressing some harmful traditional practices including through the Customary Initiation Bill (2018).

     

    The delegation however remains concerned about certain challenges, which inhibit the full realisation and enjoyment of human rights in South Africa, and in this regard wishes to highlight the following:

     

    Social Transformation and societal cohesion

    ·         The persisting high level of inequalities and poverty with more than half of the population living in poverty and the top 1 percent of South Africans reportedly owning 70.9 percent of the nation's wealth;

    ·         The slow pace of transformation of the economy, the disposition of business for maintaining the prevailing status quo of the economy and challenges of corruption in the public sector;

    ·         Rising challenges of deteriorating race relations and social cohesion;

     

    Civil and political rights

    ·         High rates of crime and violence which negatively impact the rights to life, personal security and socio-economic well-being of citizens, as well as the democratic process;

    ·         Widespread and underreported violence against women, including homicide, rape and domestic violence, and the challenges of implementation;

    ·         Violence and discrimination against the LGBTI community;

    ·         Lack of clarity around the age of consent due to divergent legislative provisions ranging from age 12 to 18;

    ·         Attacks against human rights defenders and inconclusive or inadequate investigation and follow up of such attacks;

     

    Administration of Justice and Correctional Services

    ·         Over-crowding of prisons, estimated at about 135%, which impacts security, health and safety and management of prisons;

    ·         Inadequate handling of complaints by the police particularly those relating to gender -violence including rape and the unavailability of victim-centred facilities and services that guarantee privacy for women-victims;

    ·         Slow pace of the transformation of the justice system and the disparity between expectations set with progressive legislation and the prevalent inadequacies South African’s experience in the delivery of justice;

     

    Economic, social and cultural rights

    ·         Lack of enjoyment of socio-economic rights resulting from the racial, spatial and gendered nature of poverty and inequality in South Africa

    ·         The current difficult economic climate in the country and attendant fiscal measures with potential adverse impacts on the poor and vulnerable sections of society;

    ·         The continuously high rate of unemployment in the country especially among the youth;

    ·         Continuing economic tension between the poor South Africans and migrant populations which operate in the informal sector, which result in violence and xenophobic attacks;

    ·         Concerns about continuous historical imbalance in access to housing and high incidence of evictions;

    ·         Slow pace of, and uncertainties around, the land reform process in South Africa;  

    ·         Major challenges affecting the education sector with only about 3% of students enrolled in Grade 1 complete University education;

    ·         Inadequate transformation of the education sector in achieving equitable representation in the academia, reviewing the curricula and access to higher education including participation of historically marginalized sectors of society including blacks, female students and other marginalized groups in post-graduate studies;   

    ·         Concerns about poor quality of basic education resulting in literacy/numeracy level being ranked very low in Africa and internationally;

    ·         Widespread non-compliance with labour standards by employers despite the existence of a progressive legislative framework and poor enforcement and supervision of safety standards in the work place;

    ·         Eviction of farm workers and other human rights abuses affecting farm workers and incidents of farm attacks;

    ·         Eviction of communities with actions involving the South African Defence Forces and the lack of non-implementation of court order declaring the eviction illegal; 

    ·         Poor compliance with occupational and safety standards and related exposure of workers to death and Gender-Based Violence in the work place;

    ·         The continuation of certain harmful traditional practices such as Ukuthwala and virginity testing in some communities;

     

    Extractive Industries:

    ·         Lack of enforcement of and implementation by the mining companies of applicable laws and standards or the inadequate monitoring and enforcement of such standards; 

    ·         High level of incidence of protests and tension in areas of operation of the mining sector;

    ·         Lack of gender transformation in the mining sector including poor participation of women in various structures of the mining sector and sexual harassment in the work place; 

    ·         Flawed implementation of public participation processes in the planning and implementation of mining operations; and

    ·         Poor or lack of proper closure and rehabilitation of mines with serious adverse environmental and human impacts.

     

    Considering the above, the Commission urges the Government of South Africa to:

     

    General

    ·         Overhaul and improve its capacity to implement its laws and policies, including through enhanced accountability and governance measures;

    ·         Conduct a comprehensive law reform exercise in order to harmonize laws that set divergent standards creating uncertainty hampering the enjoyment of rights;

    ·         Expedite the processes for the enactment of draft laws including the Prevention and Punishment of Hate Crimes Bill, as well as the ratification and domestication of treaties which have the potential to improve the enjoyment of human rights;

    ·         Initiate a national dialogue and multidimensional action plan for addressing the challenges of racialism, socio-economic inequality and weakening social cohesion;

     

    Civil and political rights

    ·         Address the challenges in the administration of justice for effectively addressing the high rate of crimes and violence in South Africa;  

    ·         Initiate a multi-sectoral national plan bringing together both state actors, civil society, business and local authorities including traditional authorities to address the high incidences of crime in the country;

    ·         Engage with women groups and others that work on gender equality and justice in South Africa including through the convening of the Gender summit and develop a comprehensive national strategy for addressing the social, cultural and economic dimensions of sexual, gender-based and domestic violence and ensuring effective assistance and redress to those affected by it;

    ·         Put in place effective mechanisms for ensuring protection of human rights defenders from attacks and effective investigation and follow up of attacks against human rights defenders;

    ·         Implement all the required social, legal, community cohesion and policy measures for addressing the challenges facing migrants, asylum seekers and refugees, particularly of those originating from other African countries, including xenophobic attacks;

     

    Socio-economic rights

    ·         Pursue the restructuring of the economy for achieving inclusion of marginalized sections of society, address the triple challenges of poverty and inequality including through the implementation of the country’s target to eliminate poverty by 2030 as envisaged in its National Development Plan;  

    ·         Improve strategies for youth employment, skills development and develop sustainable strategies for access to higher education for all who qualify;

    ·         Implement well managed land reform including through effective relevant legislative and constitutional changes relevant for equitable distribution of land and implemented following the democratic process, legality and without adverse impacts on agricultural production and food security;

    ·         Raise the standard of primary education through investing in teacher education and continuous training, school infrastructure and learning materials;

    ·         Initiate a multi-sectoral process involving relevant public sectors, business, entrepreneurs, local governments and development actors for comprehensive and targeted implementation of existing policies and measures for addressing unemployment and inequality in South Africa;  

    Labour

    ·         Take urgent measures and adopt a multi-sectoral approach towards closing the gap between the labour standards in the country and the reality of the majority of South African workers;

    ·         Enhance the capacity of the relevant offices for effective supervision and enforcement of the applicable labour standards; 

    ·         Take targeted measures for promoting compliance and enforcing applicable standards in sectors of the economy lacking effective compliance including the extractive industries sector, agriculture and to address abuses facing those working in the household and informal sector;

     

    Extractive Industry

    ·         Fully implement recommendations by the South African Human Rights Commission in its Mining Report released in August 2018;

    ·         Ensure effective participation of affected communities and civil society organizations in consultation on the draft mining charter and adequately incorporate their submissions;

    ·         Ensure that all the mines that have not been properly closed causing environmental and social risks are properly closed and rehabilitated following applicable standards; and

     

    Rights of Persons with Disabilities

    ·         Provide adequate resources to the South African Human Rights Commission to serve as the monitoring institution for the implementation of the Convention on the Rights of Persons with Disabilities, within the framework of its broad mandate to monitor and assess the observance of human rights, as well for purposes of delivering on its other mandates.

     

    Additionally, the delegation recommends that South Africa ratifies outstanding regional and international instruments including the Convention for the Protection and Assistance of Internally Displaced Persons in Africa, the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities, Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Older Persons, the African Convention on Data Protection and Cyber Security, and makes the declaration under Article 34(6) of the Protocol to the African Charter on the Establishment of the African Court on Human and Peoples' Rights.

     

    The delegation wishes to thank the Government of the Republic of South Africa and its people for their very warm reception and hospitality, as well as for the frank and constructive dialogue during the Mission. The delegation is truly grateful to the Government for the facilities and services placed at its disposal during the Mission, and singles out for special gratitude, the Department of International Relations and Cooperation for the excellent arrangements put in place which enabled the delegation to meet a cross-section of the South African society, in order to have a fairly representative view of the human rights situation in the country.

     

    The delegation will prepare a Report of the Mission, which will be tabled before the Commission for consideration and adoption at one of its upcoming sessions, followed by onward transmission to the Government of the Republic of South Africa.

     

    Done in Johannesburg, Republic of South Africa

     08 September 2018

     

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      Date: 10 September 2018

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