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Op-Ed: The state of civil and political rights in South Africa

21 July 2017

The South African Human Rights Commission launched its first Civil and Political Rights Report, on 28 June 2017, which provides a snapshot of key developments around civil and political rights in South Africa during 2016/2017. The launch of the report coincided with the intimidation of journalists by the Black First Land First (BFL) group and threats by BFL to protest at the homes and places of worship of members of the media. These actions which were widely denounced brings focus to bear on important civil and political rights. By KATE TISSINGTON and FOLA ADELEKE.

Civil and political rights are generally understood as those relating to the protection of individual (and collective) choices and freedoms and recent events in the public discourse further highlight the importance of the protection of these rights including the right to equality, life, human dignity, freedom and security of the person, freedom of association, protest, privacy, freedom of expression, just administrative action and access to information. The category of civil and political rights also include press freedom, the right of access to courts, political rights, among several others.

While the distinction between civil and political rights as well as economic and social rights is less relevant than in the past, in reality these rights are highly interrelated and interdependent as the events in the past year demonstrate.
The country witnessed violations around a number of these rights, most notably the shocking deaths of over 100 mentally ill patients relocated from Life Healthcare Esidimeni to unequipped NGOs. This tragedy illustrates the interrelatedness of the right to life and access to healthcare. While the excessive use of force by police officers during protests, including the heavy-handed policing of the #FeesMustFall student protests on university campuses, highlights the interdependency of right to education and the right to protest as well as freedom and security of the person among several others.

The commission’s report makes a number of findings around these issues, as well as recommendations to relevant government departments, civil society organisations and the Commission itself. While the South African government has pledged itself to the protection and realisation of these rights in terms of domestic law, challenges remain in actual implementation for the protection of the rights. These challenges were recently highlighted at the level of the United Nations. The United Nations Human Rights Committee reviewed South Africa’s achievements under the UN International Covenant on Civil and Political Rights (ICCPR) for the first time and issued concluding observations to the country.
The Human Rights Committee raised the issue of the inability of crucial oversight and monitoring bodies established to protect key civil and political rights – for example, the Judicial Inspectorate for Correctional Services (JICS) and the Independent Police Investigative Directorate (IPID) – to fulfil their mandates due to insufficient budgets, lack of institutional independence and/or limited powers. The result is that mistreatment, torture and deaths of detainees or prisoners (occurring in police custody or in correctional centres) or deaths as a result of police action, are not being properly investigated and prosecuted. The SAHRC is particularly concerned that the recommendations of the Marikana Commission of Inquiry have not been fully implemented by the government, particularly the prosecution of police officers implicated in the killings and the settling of civil claims made by the families of those who were murdered in August 2012.

In terms of the rights to privacy, freedom of expression and access to information, there is optimism that the newly appointed Inspector-General of Intelligence will effectively monitor and review the use of intrusive surveillance techniques by state intelligence agencies, which often violate the rights of journalists, community leaders and activists. A recent constitutional challenge to RICA (the Regulation of Interception of Communications and Provision of Communication-Related Information Act) has highlighted the inadequate or non-existent regulation of surveillance and monitoring activities undertaken by state intelligence agencies on citizens.

The much anticipated establishment of the independent Information Regulator, in terms of the Protection of Personal Information Act (POPIA), also potentially bodes well for ensuring the rights to personal information and access to information are protected. The importance of the privacy of personal information hit the headlines with the uncovering of dubious practices by Cash Paymaster Services (CPS) and its parent company Net1, who were found to be using the social grant payment system to make deductions from beneficiaries for products peddled by its subsidiary companies. The Constitutional Court has in response emphasised the importance of the privacy of personal information. The Information Regulator will approve legally enforceable codes of conduct for the processing of personal information for different sectors, monitor and enforce complaints, and conduct education and research. Over time the Information Regulator will also take over from the SAHRC as custodian of the Promotion of Access to Information Act (PAIA), ensuring compliance with the act by both public and private bodies (an area sorely lacking).

The past year has also seen a number of other court cases relating to civil and political rights. For example, civil society organisations have initiated litigation challenging the constitutionality of the Correctional Services Act (which does not provide JICS with sufficient financial, institutional and operational independence to fulfil its function to ensure the rights of detainees and prisoners are not violated); are challenging PAIA, which does not provide for the recording and disclosure of information regarding the private funding of political parties); and have successfully challenged sections of the Immigration Act (which do not give detained foreigners the right to appear before a court to confirm the lawfulness of their detention). In terms of latter, the Constitutional Court handed down a ruling on 29 June 2017, finding that the constitutional rights to challenge in court a detention within 48 hours of arrest, and to be protected against arbitrary detention without trial, apply to both foreign nationals as well as South African citizens. The Commission is also following the ongoing challenge to the constitutionality of the Regulation of Gatherings Act, which criminalises the conveners of an assembly of over 15 people if prior notice for the assembly is not provided to authorities.

The commission’s report also highlights a number of concerns around new legislation being developed which appears to be rolling back some of the progressive gains made in implementing civil and political rights, and which do not comply with South Africa’s Constitution or regional and international human rights commitments. Some of these contested legislative developments relate to the expanded definition and criminalisation of hate speech contained in the Prevention and Combating of Hate Crimes and Hate Speech Bill; concerns around the enforcement of the proposed Traditional Courts Bill; the criminalisation of false disclosures (whistle-blowing) in the Protected Disclosures Amendment Bill; and the overbroad and vague regulation of online content proposed in the Films and Publications Amendment Bill.
As the primary guardian of constitutional rights in the Constitution to promote respect for and a culture of human rights, the SAHRC plays an important role in monitoring the protection of all human rights and ensuring that state action does not unduly infringe on the ambit of these rights. While the commission recognises that the state has achieved a number of gains post-apartheid, bodies like the SAHRC require a more sustained parliamentary commitment through oversight of government to ensure the commission’s recommendations are promoted, strengthened and enforced by government. DM

Kate Tissington and Fola Adeleke are researchers at the South African Human Rights Commission (SAHRC)

This article appeared on Daily Maverick

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