Picture: Supplied/SAHRC logo – By the Commission’s own admission, the SAHRC has not been able to meet all its targets, including promoting respect for human rights and a culture of human rights, promoting the protection, development, and attainment of human rights, monitoring and assessing the observance of human rights.
By Bheki Mngomezulu
When South Africa metamorphosed from apartheid and transitioned to a new political dispensation in 1994, the political leadership envisioned what South Africa would need to ensure democratic consolidation. Among the decisions taken was to establish Chapter 9 institutions in the Constitution, whose objective was to support constitutional democracy.
One of these institutions was the South African Human Rights Commission (SAHRC), founded on October 2, 1995, with its headquarters in Braamfontein.
The three functions of the SAHRC listed in Section 184(1) of the Constitution are: (a) to promote respect for human rights and a culture of human rights; (b) to promote the protection, development, and attainment of human rights; and (c) to monitor and assess the observance of human rights in the Republic.
The SAHRC was given four powers: (a) to 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.
As part of its mandate, the Commission is expected to approach other state institutions annually requesting information on the measures that these institutions have taken to work towards the realisation of the human rights enshrined in the Bill of Rights listed in Chapter 2 of the Constitution. The areas of focus include housing, healthcare, food, water, social security, education, and the environment. The Human Rights Act of 1994 guided the operations of the SAHRC.
In 2013, the South African Human Rights Commission Act (No 40) was enacted. Its aim was to provide for the composition, powers, functions and functioning of the Commission, and to provide for the repeal of the Human Rights Commission Act of 1994, as well as to provide for the matters connected therewith.
Since 1996, the SAHRC has been producing reports which give highlights of its performance – including the Commission’s achievements and challenges. In its 2021-2022 Annual Report, the SAHRC reported that it achieved 63 percent of its own targets – meaning that 37 percent of the targets were not achieved. It described this as “the same level of achievement of the previous financial year”.
By the Commission’s own admission, it has not been able to meet all its targets. This is honest reporting, which means that there is room for improvement. But these are self-evaluation reports. The most important assessment should come from the end-users, the South African public.
Given these clearly defined roles, and given the amount of time that the SAHRC has had to perform its duties, the question becomes: how far has the Commission gone in delivering on this mandate? Alternatively, to what extent have the rights of the citizens been protected in the areas enumerated above? If the goal has not been reached, what more can it do to achieve it? These critical questions should be addressed with the benefit of hindsight.
Firstly, it should be stated that the SAHRC is an independent body. For this reason, it must act objectively in a non partisan manner. Thus far, it has kept this mandate, although there is still room for improvement as evidenced in the Commission’s own assessment.
The reality is that 29 years into democracy, human rights are still being violated. This happens both in the public and private sectors. As indicated above, the SAHRC was established in order to protect the rights enshrined in Chapter 2 of the Constitution.
One of the areas highlighted above is housing. The reality is that while it is true that the state has provided housing for its citizens, there are many South Africans who still do not have any shelter. This means that this right continues to be violated. The recent floods in provinces like KwaZulu-Natal, Eastern Cape, Free State, Gauteng, Mpumalanga, Limpopo, and North West have made this problem even more glaring. There are people who still live in community halls and churches with no houses of their own. The SAHRC has its work cut out so that it can deliver on its Constitutional mandate.
The second area is healthcare. Many healthcare facilities have been built around the country since 1994. However, in the main, rural areas have been neglected for decades. People still walk long distances to seek medical assistance. Others must board two or even three buses and taxes in order to access healthcare. This is a human rights violation which falls within the purview of the SAHRC. To crown it all, some of the healthcare facilities have insufficient medication, which renders them ineffective in addressing the pressing needs of the people.
Another area is water, which is described as one of the basic needs in the Constitution. The general view is that South Africa is a water scarce country – something that is sometimes abused by politicians when they fail to deliver this service to communities. This becomes clear in places around big dams such as Jozini Dam. The dam has more than enough water to serve South African citizens and eSwatini citizens. Regrettably, many local communities still cannot access this water. Delegation of authority is cited by local municipal officials as the hindrance. They have plans but cannot implement them because decisions must be made at the national level. The question becomes: what is the SAHRC doing about that?
Education is another area of concern. The provision of education is a human rights issue. Many rural and township schools are in bad shape. There are still teachers who conduct classes under the trees or in mud schools. This is not only a gross human rights violation; it is also destruction of the country’s future. If children drop out because they cannot withstand the adverse water conditions, this will have a ripple effect. Firstly, they will remain uneducated. Secondly, they will struggle to get employment. Thirdly, they will not be able to take care of their families. Consequently, some might resort to criminal activities. Is this what the country needs? Surely, not!
A new phenomenon has surfaced. The Department of Basic Education has adopted a “one shoe fits all” approach when dealing with schools that have small numbers of children. Without any research-based thinking, the department unilaterally shuts down schools with small numbers of learners and moves its teachers to other schools. This happens without consulting parents or trying to understand why these schools are under-subscribed. Worse still, no consideration is made of how the few learners will be transported to the schools to which they are being moved.
A case in point is Khobongo High School, located in far northern KwaZulu-Natal. The department took a unilateral decision to close the school and moved both the teachers and learners to Jevu High school located about 13 kilometres away. This was done under the pretext that a bus would be provided. Neither the state of the road infrastructure nor the type of the bus to be used were ever considered. Subsequently, on rainy days, there is no bus.
These kids have two options: to bunk school for the duration of the rain and a few days thereafter while the road dries up, or to make the 26 kilometre journey by foot everyday until the bus returns. This is a gross human rights violation and yet nothing is being done to address it.
One of the functions of the SAHRC mentioned in Section 184 is “to monitor and assess the observance of human rights in the Republic”. Racism and racial overtones are a nemesis to the observance of human rights. In the farms, human rights are violated on a regular basis with no consequences. Reports of white farmers shooting black people claiming that they mistook them for hippos or monkeys are reported. When cases are opened, some groups such as Afriforum and others, defend these white perpetrators. Surely, this does not assist the country in its democratic consolidation agenda. The SAHRC needs to up its game.
In its self-defence, the commission could put a few challenges on the table – some of which are genuine. Firstly, members of this commission are not ubiquitous or found everywhere.
This means that the onus is on the victims or those around them to report cases. However, the commission is mandated to educate society. If it has not done enough in this area, it needs to improve.
Lack of resources could be another concern. Here, the Commission needs to be resourced in terms of human capital, financial, and material resources. This is important because some of its work involves research which cannot just be done by anyone but needs people with requisite skills and knowledge. Financial resources are needed to enable the Commission to dispatch its team members to different places and provide them with everything they need in order to perform their duties.
Thirdly, South Africa has become a violent country. The safety of commissioners cannot be guaranteed. Therefore, security should be provided to the SAHRC members whenever they carry out their responsibilities. The SAHRC has made an imprint since 1995 but there is still more work to be done!
Prof Bheki Mngomezulu is Director of the Centre for the Advancement of Non-Racialism and Democracy (CANRAD) at Nelson Mandela University
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