MY EXPERIENCE AS A HUMAN RIGHTS DEFENDER AT HOME AND ABROAD
By Advocate Mabedle L Mushwana
Lecture delivered at the Kacheon University, South Korea
13 September 2013
It is a great pleasure to be here with you today. I would like to thank the National Human Rights Commission of Korea and the authorities of the Gachon University for inviting me to share with you my little experience as a human rights defender/activist.
During my lecture, In a nutshell, l will share some of my personal experiences of being born as a black person in the then apartheid South Africa and having experienced life under the repressive laws of the successive Apartheid regimes.
I will share with you how I responded to this situation and how I chose to pursue a path in life in which I used my legal skills to speak out and fight against Apartheid and how having set out on this path I have continued to devote my life and career to contributing towards the reshaping of a society based on respect for fundamental rights and freedoms.
In South Africa, there have been many people who have contributed towards the achievement of human rights and democracy; therefore what I share with you today are just a few of my own small personal contribution and experiences that l plan to share with you within this very limited time..
I hope that at the conclusion of this lecture you will walk away with a deeper understanding and appreciation of what human rights are and why there is indeed an ever increasing need even today to advocate for the promotion and protection of human rights.
I also hope that what I have to share will inspire some of you to think about the paths that you have chosen or you might want to choose and what it is that you can do to promote the creation of a strong and vibrant human rights culture in your own country.
As the current youth of South Korea, you are part of the core future leaders of this beautiful and great country and have the potential to play a very important role in shaping the future and destiny of your country.
The words ‘human rights’ are often thrown around glibly yet very often there is a lack of clarity and certainty about what these words precisely mean.
Human rights are rights that belong to everyone simply because they are human beings.
By belonging to everyone it is meant that every person is a holder of these rights and they may not be taken away or denied because of a person’s status.
By status I am referring to a person’s race, gender, nationality, religion, ethnic origin, political affiliations, sexual orientation, age, disability or any other arbitrary ground which is used to differentiate one person as different from another.
It is also important to note that human rights are universal, they belong to everyone; and they are also interrelated, interdependent and indivisible.
No right is greater than the other.
The primary obligation to promote and protect human rights rests with the State. However, every individual, and other non-State actors such as business corporations, also have the responsibility and duty to respect the rights of his or her fellow human beings.
Human rights defenders
People who actively work to promote and protect human rights are referred to as human rights activists or defenders.
In recent years there has been greater attention given to human rights defenders and the important work that they do.
There has even been an international declaration developed called the “Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms.” This declaration defines a human rights defender as “anyone working for the promotion and protection of human rights”. This broad definition includes professional as well as non-professional human rights workers, volunteers, journalists, lawyers and anyone else including students such yourselves who carry out, even on an occasional basis, human rights activity.
Life under Apartheid in South Africa
Now that you know a bit more about human rights and human rights defenders I will speak about life under Apartheid in South Africa.
The Apartheid system in South Africa which was institutionalised through legislation was the antithesis of a human rights system.
Under Apartheid the regime based all decisions in relation to its citizens on a system of racial classification in which white persons benefitted to the severe detriment of black persons. There were different schools, hospitals, clinics, train coaches, benches, entrances to buildings; the list can go on, for black and white persons, with what was offered to black persons was always of a substantially inferior quality.
Those who spoke out against the system were harassed, tortured, beaten and sometimes killed by a brutal police and army service whose instructions it was to retain the unequal status quo.
As black people in South Africa, it was ensured that in every aspect of our living we were reminded that we were regarded as second class citizens.
We had no say in the decisions of government even those affecting us as we had no vote and systematic racism permeated through the actions of all but a very few white persons.
The Apartheid system was entrenched through a complicated myriad of laws which regulated all aspects of life including who you could and could not have a relationship with or marry.
My early life
I was born and grew up during the Apartheid regime, perhaps being spared somewhat as a young child in the rural areas the brutality of the regime but certainly was impacted in all other aspects of my life.
Despite this, I managed to obtain some education and came to work in the courts initially as an interpreter and later as a magistrate.
Here it was impossible not to be affected and sensitised to the deep inequality and the injustice of the Apartheid system.
I also intrinsically knew that the daily discrimination that we faced as black people was inherently unjust and that I had to use my skills to fight this evil system.
I did this knowing that my actions could and sometime did get me arrested, detained and tortured.
I was fortunate compared to some of my other friends who were killed during these dark days of Apartheid as they pursued equality and justice more vigorously than some of us.
Living under apartheid, forced me and many other South Africans, to realize that we deserved better.
Simply put we were human beings, who had equal rights and deserved to fully enjoy those rights and we chose to demand those rights.
Practising as a human rights defender
After I earned my two degrees in law of which my junior degree was through correspondence, I was not completely certain which path I would follow.
However, I quickly became busy defending political detainees and prisoners.
I represented numerous people who had joined or who were suspected of having joined underground liberation structures.
It was through this work that I became known to the authorities and was subjected to harassment and was even detained on a number of occasions.
This in turn fuelled my desire and commitment to fighting Apartheid and I became increasingly political active.
National Education Crises Committee
At one stage I was member of the National Education Crises Committee in my local province.
I was its Chairperson and l knew then from my own experiences in life that a good quality education is central to bettering your own position in life and making a contribution to the society in which you live.
It so happened that during one of our protest meeting that was held in a stadium the police came uninvited and disrupted the meeting a process that resulted in six people being shot and killed by the police.
Detention during Apartheid
My involvement in the work of the Crisis Committee resulted in my intermittent detentions under Emergency Regulations; fortunately, during the last one of these detentions coincided with the release from prison of former President Nelson Mandela who immediately travelled from province to province calling for the release of all political prisoners and detainees that were in detention at that time.
However, we knew that progress was being made in the struggle against Apartheid and my commitment was only deepened to continue contributing in whatever way that I could.
South Africa engaged in protracted negotiation process to end apartheid which then led into the first democratic elections that was finally held on the 27th April 1994 after the adoption of interim draft Constitution was agreed upon.
The next step was to engage in the drafting of the final Constitution which was not easy at all, but once the spirit and need for negotiation and reconciliation gained momentum the drafting of the final Constitution started in earnest.
I am happy to have been part of this enriching experience.
The end product of this difficult process of drafting a Constitution, which at times faltered, and sometimes broke down completely, was our South African Constitution which is often lauded as being one of the most progressive in the world today.
The Bill of Rights has one of the most expansive equality clauses that recognises the principle of non-discrimination and enumerates a large number of prohibited grounds of discrimination.
The South African constitution also stands out as it entrenches both civil and political rights as well as economic and social rights.
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South Africa is one of very few countries in the world where socio economic rights are justiciable and where a citizen can take the State to court and legally demand that these rights are realised.
Some of you may have heard for example about the case of Irene Grootboom. It was in this case when it came before the Constitutional Court which subsequently found that economic and social rights are justiciable and enforceable in a court of law in South Africa.
As l have already stated after South Africa’s first democratic elections which put an end of to the Apartheid Regime, I was elected to serve as a Member of Parliament from 1994 t0 2002.
During this period I served in various committees before l became a Deputy Chairperson (Speaker) of the National Council of Provinces (Senate).
I have had many experiences during the work that I have done of having to confront the legacy of our deeply divided and polarized system and the need to transform to democracy.
It is not always easy to face those who were your enemy and to sit at the same table and discuss and negotiate legislative matters. Along the way there were many compromises as we pursued the higher ideals of reconciliation and nation building.
Throughout these processes, it assisted me and of course all other human rights activists to be guided by human rights principles such as ensuring that there is no discrimination and that the dignity of all must be upheld.
Judicial Service Commission
One of the enormous tasks that confronted and still confronts South Africa is to ensure that those who were denied opportunities in the past are no longer discriminated against and that barriers are removed.
Our constitution recognises the need to have affirmative action in order that our society can move more quickly towards ensuring equality and addressing the imbalances that bedevilled our past.
Representation in the judicial system and particularly on the bench was one area in particular where transformation was desperately needed after 1994 in order to ensure that there was the necessary diversity.
The judiciary is mandated with the power to transform society.
However, in order for it to do this it must itself be transformed.
At the end of Apartheid in 1994 there were only three black persons and nine women who were judges, the rest were white men .
I served in the Judicial Service Commission which is the body that is tasked with choosing suitable candidates as judges and forwarding these names to the President for appointment.
This was one of the more difficult tasks I was called upon to participate in, but we soldiered on and l am happy that today we have increased the number of black judges as well as the number of female judges serving in our courts.
In 2002, I was appointed as the Public Protector (Ombudsman) of South Africa.
In South Africa the role of the Public Protector is to investigate any conduct in state affairs, public administration or sphere of government that is alleged or suspected to be improper or that has resulted in any impropriety or prejudice.
Put in simple terms, the Public Protector is an independent institution where a citizen may lay a complaint when he or she is of the view that what the state did was wrong or that a state official abused his/her office powers or that such an act amounts to maladministration.
Whilst complaints that are brought to the Public Protector do not present as human rights violations many in fact are as they relate to service delivery of economic and social rights such as housing, health services and education.
Through this role I gained a deeper appreciation of the high levels of poverty that continue to be experienced by the majority of black South Africans, particularly those living in the rural areas.
Many people in South Africa living in abject and even extreme poverty remain marginalised, voiceless and invisible to those in power.
The promises of the constitution still remain elusive and there is much work that still needs to be done.
The gap between the rich and the poor continues widen.
My experiences as Public Protector reinforced how awareness and knowledge about human rights is needed by all citizens, especially those who are excluded and live in abject poverty in order that they make their voices heard and claim their rights.
It is vital that in the establishment of a human rights culture that no one is excluded and that the most vulnerable are included.
For democracy to prevail, it is imperative that it reaches every citizen. It is often said that it is easier to struggle for democracy but more difficult to sustain it.
South African Human Rights Commission
My time as Public Protector prepared me well for my current position that of human rights Commissioner and Chairperson of the South African Human Rights Commission.
The Commission is South Africa’s independent national human rights institution and like the National Human Rights Commission of Korea is recognised as such by the United Nations.
In South Africa our human rights commission derives its mandate to promote and protect human rights from the constitution.
Here I have been confronted with having to deal with a diverse range of human rights complaints.
It has been a challenging experience to deal with matters of hate speech and complaints of racial discrimination.
The most difficult complaints to deal with are those that cannot legally be construed as hate speech yet the speech is not desirable, but often hurtful, in that it does promote the constitutional values.
In these complaints the commission is placed in the difficult position of having to uphold legal principles yet at the same time are acutely aware that the speech complained of does not promote constitutional values.
One of the ways in which the commission has addressed this difficult issue is to hold public dialogues across the country where members of the public may come and debate freedom of speech.
To be a Public Protector or a human rights Commissioner places one in an unenviable position of having to preside and judge those occupying higher offices some of whom were your comrades during the liberation struggle.
While l gained some new friends based on my findings that favoured some complainants, l also earned some ire of my former comrades who do not always take kind to any finding of impropriety.
Importantly, sometimes it becomes necessary to take unpopular decisions in order to lead.
That is why when l was appointed to any of the two positions l resigned from all of my political positions.
Making a finding against the then Minister of Justice and the Director of National Public Prosecutions caused me to be insulted and ridiculed in public by these officials.
When you are a Public Protector or a human rights Commissioner you are expected to be impartial in the sense that you must treat all who appear before you as equals and you must be apolitical.
Having been a member of the ruling ANC where l occupied various senior positions l was a target for attack for any matter that l found in favour of the ruling party.
I have had some of my findings being reversed by judges of our high Courts, but l was never accused of having made such a finding because l was once a member of the ANC.
Some members of the public especially opposition parties publicly accused me of being a lackey for ruling party.
Corruption has no eyes, you or your family member can fall victim of it, so why would one defend it!
My stance on matters of this nature was and continues to be guided by my resolve to rid South Africa of any form of corruption and that we fought so hard against it and cannot in any way countenance it.
Promoting and protecting human rights abroad.
Through the various positions I have held as a human rights defender, I have come to realise the importance of engaging with international structures in order to strengthen the domestic human rights system.
Whilst I was a member of parliament I was fortunate to be a member of a number of delegations and study tours that visited countries abroad to observe and learn. Our Parliament recognized the need to learn from other States how to subscribe to human rights principles.
I was part of various parliamentary delegations which visited a number of first world countries to study their legislation and to use such knowledge when we were drafting our domestic laws.
Cite Examples : Parliamentary Ethics and NDPP
African Ombudsman Association
During the time that I was the Public Protector, I was elected to serve as the Executive Secretary of the African Ombudsman Association.
This led to my awareness of the plight of fellow Africans who had been reduced to situations of want not because their Governments did not necessarily have the funds to improve their lives and standards of living but because of poor service delivery due to corruption, maladministration and mismanagement of funds.
However despite the many institutions in Africa that promotes and protect human rights, the fundamental question that remains is, “have we succeeded in inculcating a culture of human rights in the continent?
NANHRI and International Coordinating Committee.
Since I have been with the South African Human Rights Commission I have also been called upon to serve as the Chairperson of the Network of African National Human Rights Institutions (or NANHRI), a position which I held until May of this year when I was elected to Chair the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights or ICC. This is the umbrella body of national institutions or human rights commissions throughout the world.
Cite examples of some of the Challenges
Unwillingness of gvts to form compliant NHRIS, intimidations, lack of funds, failure to implement findings.
The role of the youth.
Next year, 2014 will mark twenty years of democracy in South Africa.
Let me end my talk by saying something about the role of youth in human rights activities.
For many of you, twenty years must seem like a long time if not a lifetime.
However, those twenty years have passed quickly and I know that there is still much that needs to be done in South Africa and across the globe in order to ensure that human rights are enjoyed by everyone.
I therefore take particular pleasure in speaking to youth about the past and the enormous responsibility that they carry in order to ensure that we live in a world in which human rights are respected; promoted and protected.
It is important to me that the youth of today are made aware of the past struggles of their parents and that they can take up the baton as we move into the future.
There have been significant points throughout history where the youth have stepped forward and ensured that change has occurred that promotes human rights.
In South Africa change - came as a direct result of youth action: For instance, the African National Congress (ANC) which was one of the primary movements that fought apartheid was revolutionalized by its youth leaders such as Nelson Mandela and Oliver Tambo during the 1940s.
The role of the youth in bringing about democracy is recognised and in South Africa we observe an annual Youth Day each year on 16 June.
This day commemorates the Soweto Uprising which took place on 16 June 1976 when the youth began a series of protests against being taught the language Afrikaans in their schools.
The peaceful marchers were fired on by police and it is estimated that a few hundred youths were killed in the riots and violence that ensued throughout the country.
A more recent example in South Africa is that of the remarkable Nkosi Johnson who took the story of the plight of children and mothers infected with HIV to the world.
His activism from the tender age of eight up until his death at age 12 in 2001 led to the adoption of HIV/AIDS policies in schools that guaranteed that a child would not be denied access to education because of his or her HIV status.
It also led to a groundswell of activism which ultimately led to access to anti-retroviral therapy for pregnant mothers in order to prevent the transmission of AIDS from mother to child.
Across the globe today we see similar examples of youth stepping forward and speaking out against injustice.
We are all familiar with Malala Yousafzai of Pakistan who was shot in the head by the Taliban for defying a decree that prohibited girls from going to school.
In July this year she addressed the United Nations General Assembly and spoke of her belief in the right of all children to an education and to equality, no matter the realities they faced.
The youth have been central to the Arab Spring with its call for the end of dictatorship and the democratization of Arab countries is the youth.
The use of social media by the youth has changed the way in which human rights atrocities are highlighted and broadcasted to the world to see, creating greater accountability and fighting impunity.
The youth are often the catalyst for change because of their commitment to the cause which they are fighting for.
Today, human rights defenders across the world face numerous challenges in the pursuit of human rights for everyone.
Recently the United Nations Special Rapporteur for human rights defenders recognized that national human rights institutions can themselves be considered human rights defenders.
In discharging their mandates, many members and staff of national human rights institutions receive death threats, are killed, face imprisonment and in some cases are also forced to flee their countries.
Against the background of celebrating twenty years since the adoption of the Vienna Declaration and Programme of Action, national human rights institutions, and all those that form part of international human rights architecture still have much to achieve.
The plight of women and girls in many parts of the world remains dire; other vulnerable groups including older persons, those with disabilities and indigenous people still face exclusion and discrimination.
I hope that what I have shared with you today will provide you with some insight into the importance of advocating for equality and dignity for all.
It is only by each person making a small difference in whatever it is that they choose to do in life that collectively we can end discrimination and ensure that those who are vulnerable and marginalised are heard.
Let me wish all of you a bright and prosperous future and to urge you to make use of this rare opportunity of sharpening your knowledge and skills that will guide you through the labyrinth of life; l have learnt very late though that the best place to be is at a University, where the well of knowledge is waiting for you, for out there, you will be opn your own; and you will need this knowledge.
I will end with the words of Nelson Mandela our greatest icon and leader who has inspired generations across the world and human rights defenders across the globe, who is currently gravely but recuperating from home, he said “What counts in life is not the mere fact that we have lived. It is what difference we have made to the lives of others that will determine the significance of the life we lead.”
I THANK YOU FOR YOUR AUDIENCE.