Judge and Jury?

South Africa has organisations that entrench and strengthen democracy, each with a specific mandate and different powers. Some deal with our right to vote while others deal with investigation organs of the state. Our Constitution lists them as:the Public Protector; the South African Human Rights Commission; the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities; the Commission for Gender Equality; the Auditor-General and the Electoral Commission.

These bodies guarantee democracy irrespective of the ruling political party. As Constitutionally Protected, or Independent, bodies they are ”Chapter 9 Institutions” because Chapter 9, Sections 181 to 194 of the Constitution gives them wide raging powers:

  • These institutions are independent, and subject only to the Constitution and the law. They must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice.
  • Other organs of state, via legislation etc, must aid and protect the institutions ensuring their independence, impartiality, dignity and effectiveness.
  • No person or organ of state may interfere with their functioning.
  • The institutions are accountable to the National Assembly, and report on activities and performance to the Assembly at least once a year.

The Human Rights Commission

I think that, of them all, the HRC is the most important, with their specific mandate to protect, promote and enforce human rights, but I must confess that I once served on this body.

During my time we used our powers to: set up Section 5 Committees; interact, advise and create a close relationship with civil society; promote Socio-Economic Rights; summon government officials to provide Socio-Economic reports and hold Poverty Hearings. We investigated: abuse of farm-workers; initiations at universities; racial integration at former model-C schools, racism in the media and the formulation of Open Democracy with civil society. We also assisted in the drafting of PEPUDA legislation and promoted the Rollback Xenophobia campaign.

One of our shortcomings was when we failed to take disability discrimination to court. We had that opportunity with a complaint against an airline that refused to carry a disabled person. The legal department of the HRC backed off on the basis of a letter from a famous person with a disability who sang the praises of the airline concerned. My impression then was that the legal department was unwilling to tackle private companies, being petrified of corporates and their big law firms.
Other than high media profile cases it is doubtful that the HRC is effective, especially on matters that deal with disability discrimination.

SADA’s Case

Quite recently, the South African Disability Alliance (SADA) lodged a complaint that some of the FIFA 2010 World Cup stadia are non compliant of Building Regulations pertaining to access for Disabled People. A detailed analysis was provided. The HRC, with all of its constitutional powers, decided that, as the matter was under investigation by the Parliament Sport Committee, they would not proceed with the complaint.

This is a clear dereliction of their duty to protect, promote and enforce human rights - the rights of Disabled Persons - the right to free and unhindered access to designated stadia.

It just boggles the mind as to how such a thing can happen. How can a body with such power not use it, or use it only for high profile cases? Are the issues of Disabled Persons not high profile enough?

Has the HRC ever been effective? Is it still effective, especially on matters pertaining to violations of the rights of Disabled Persons?

And who judges these institutions in case of complaints against them? They are accountable to Parliament, through the Portfolio Committee system, and they report once a year.

But is this Parliament Portfolio Committee an effective watchdog? Is the public allowed to attend the report sessions and put their questions to the HRC?
Groups like SADA should put pressure on these organisations that fail to comply with their mandate. What is the point of good laws when they are not implemented?
Disabled People have come a long way and lobbied for some of these laws - we should be vigorous in ensuring their implementation.
We are a constitutional democracy and our institutions, like the HRC, should work for everybody and not just for high profile cases.

The Constitution provides that the HRC shall, inter alia:

  • be competent and obliged to promote the observance of, respect for and the protection of fundamental rights;
  • develop an awareness of fundamental rights among all people of the Republic;
  • make recommendations to organs of state, at all levels, where it considers such action advisable for the adoption of progressive measures for the promotion of fundamental rights within the framework of the law and the Constitution;
  • undertake such studies for report, on or relating to, fundamental rights as it considers advisable in the performance of its functions;
  • request any organ of state to supply it with information on any legislative or executive measures, adopted by them, relating to fundamental rights;
  • investigate any alleged violation of fundamental rights and assist any person adversely affected thereby to secure redress;
  • bring proceedings in a competent court or tribunal in its own name, or on behalf of a person or group.
  • liaise closely with institutions, bodies or authorities similar to the Commission in order to foster common policies and practices and to promote cooperation in relation to the handling of complaints in cases of overlapping jurisdiction;
  • be afforded such assistance as may be reasonably required from organs of state, for the effective exercising of its powers and performance of duties and functions.

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