South Africa

Op-Ed

Twenty five years of the SA Human Rights Commission – working towards a society that the country’s people have struggled for

A residemt throws rocks on Robert Sobukwe in Cape Town, South Africa during a protest on 27 July 2020. (Photo: Gallo Images/Jaco Marais)

Today the commission is, without a doubt, a leading champion of human rights in South Africa, regionally on the African continent, and has achieved global recognition.

Friday 2 October 2020 marked a milestone for constitutional democracy, and the promotion and the protection of human rights in South Africa. It was on that date, 25 years ago, that the South African Human Rights Commission (SAHRC) came into operation. 

The 25 years of the existence of the commission demonstrate the continued relevance of the institution in contributing towards the establishment and deepening of a culture of human rights in South Africa. 

Two years before the establishment of the commission, the UN General Assembly adopted a resolution supporting the establishment of national human rights institutions (NHRIs) by UN member states. At the time, NHRIs were a new phenomenon, at both national and international levels, and not properly understood or appreciated by citizens and the governments that established and funded these institutions. 

In South Africa, the establishment of the commission as a leading NHRI also raised many concerns and doubts about its independence and effectiveness in holding the government to account in relation to the protection and promotion of human rights. Among the numerous concerns raised were the following:

  • Whether the commission would be able to overcome the challenges it would face and, most importantly, whether it would be able to hold the post-apartheid government to account for human rights failures; 
  • Whether the commission would be truly independent and not be indebted to the governing party and the president of the country, who appoints members of the commission (commissioners); and 
  • Whether the commission would navigate the political, economic and social challenges facing the country, including challenges presented by the legacy of apartheid and colonialism. 

At the time of the establishment of the commission and as still is the case today, South Africa was a deeply divided and polarised society in terms of race, class and gender, and a society deeply affected by poverty and violence, and without a deep-seated culture of respect for human rights.

The commission started with a handful of officials in 1995. It has since then seen incredible growth over the past 25 years, with about 180 personnel in 2020. Today the commission is, without a doubt, a leading champion of human rights in South Africa, regionally on the African continent, and has achieved global recognition. The commission has full speaking rights at the UN Human Rights Council on all agenda items of the council by virtue of its compliance with the requirements of UN General Assembly resolution on national human rights institutions in terms of their effectiveness and independence.

The commission also played a leading role in establishing the Network of African National Human Rights Institutions and the Global Alliance and National Human Rights Institutions. The commission was elected to chair both bodies in recognition of its role and stature in the global community of national human rights institutions.

In using its constitutional mandate and its specific powers conferred to it in terms of the Constitution of the Republic of South Africa, and the South African Human Rights Commission Act 40 of 2013 (the SAHRC Act), the commission has held several investigative hearings and national inquiries that have contributed to the advancement of human rights. Some of these include:

  • The hearing on racism in the media – with this year marking the 20th anniversary of the conclusion of that hearing; 
  • Hearings looking into the rights of indigenous persons; 
  • Hearings on racism in schools; 
  • Hearings on the impact of protest action on schools and education; and, 
  • Hearings on the impact of mining operations in communities. 

The commission has also litigated at various levels of the country’s judicial system in order to seek appropriate redress for victims of human rights violations. Some of the cases included:

  • The Grootboom case Government of the Republic of South Africa v. Grootboom, [2000] ZACC 19; 2001 (1) SA 46; 2000 (11) BCLR 1169 (S. Afr.) on the right to housing.
  • The Bhe case Bhe and Others v Khayelitsha Magistrate and Others (CCT 49/03) [2004] ZACC 17; 2005 (1) SA 580 (CC); 2005 (1) BCLR 1 (CC) on the rights of children and women deprived of their rights under the customary law of succession.
  • The Vicki Momberg matter, in the equality court, for her repeated use of the k-word.
  • The Jon Qwelane matter, which was recently heard before the Constitutional Court, which together with the expected decision on the Masuku case, will help settle the acceptable parameters pertaining to hate speech in terms of the Constitution and the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000.

Due to its own track record and the manner in and extent to which it has exercised its powers, the commission has garnered the highest expectations from the majority of inhabitants of South Africa. This factor, apart from the constitutional mandate placed on the commission, holds the commission accountable to its highest authority – the people of South Africa. 

The 25th anniversary thus provides the commission and all within South Africa with an opportunity to reflect on the state of human rights in South Africa as well as the extent to which we have made progress towards establishing a culture of human rights and the challenges that still remain in this regard. The celebration of this milestone also reminds us to appreciate the extent to which the entrenchment of a culture of human rights is vital for the strengthening of our democracy as well as the stability and prosperity of our nation. 

The novel coronavirus, which caused a global pandemic and has impacted our people and country in such a devastating manner, has also laid bare the disparities with regard to the implementation, respect and adherence to human rights in South Africa. Nevertheless, the commission, in line with its mandate, has enthusiastically responded to many human rights challenges occasioned by the Covid-19 pandemic and responses thereto by the state and other stakeholders within its mandate and to the extent its resources permitted. 

The commission dedicated much of its resources to monitoring and assessing the observance of human rights by the government in dealing with Covid-19. To this end, the commission employed all its provincial offices to monitor and provide feedback to the national office on the state of human rights in each province, dealing with the right to education, allegations and instances of brutality by members of the South African Police Service and the South African National Defence Force, as well as looking into the impact of corruption on the attainment of human rights. 

The commission has a broad human rights mandate, cutting across the public and private sector and national and international levels. As a result, the commission has been expected to deal with each and every human rights concern. While the commission views every issue it is approached with as important, the challenge is that the commission gets “spread thin” and becomes unable to effectively guarantee the adherence of human rights with the systemic and national impact it wishes to achieve for each and every person. 

The commission, like most public and private institutions, has also experienced its own challenges over the past 25 years; however, what is clear is that the institution remains committed to its mandate, continues to be regarded as a true champion and defender of human rights, and remains an institution that our people and founding mothers and fathers remain proud of. 

The commission looks back at its 25 years of existence and continues to challenge itself to establish a South African society our people struggled for: a society founded on respect for human rights. The commission is committed and will continue to work towards a culture of human rights in our country. DM

Tseliso Thipanyane, Chief executive officer of the South African Human Rights Commission and former chief executive officer of the Safer South Africa Foundation. 

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