UNIVERSAL PEER REVIEW
UN member states call for the protection of SA’s human rights defenders and whistle-blowers
At a recent meeting of the UN Human Rights council, more than 12 member states shone a spotlight on the South African government’s failure to protect human rights defenders, raising concerns about increasing attacks on whistle-blowers and activists and widespread impunity for the killings of such groups.
The UN Human Rights Council considered South Africa’s fourth cycle in the participation of the Universal Periodic Review (UPR) on 16 November, an interactive dialogue that provides an opportunity for UN member states to be assessed on their human rights situation, based on submissions made by stakeholders such as civil society organisations and national human rights institutions.
As one of the longest-serving members of the Human Rights Council, South Africa has been participating in the UPR mechanism since its inception.
Although the country has made significant strides in its participation in the UPR mechanism, there remains a lot of work to be done on providing a comprehensive overview of the actual human rights situation on the ground, especially on the issue of human rights defenders.
Since the establishment of the UPR mechanism, the most common recommendations made to South Africa have focused on violence against women, children, HIV/Aids treatment and discrimination based on race, nationality or sexual orientation.
In response to some of these issues, the South African government has mainly cited the existing constitutional safeguards and its commitment to international standards on the protection of such rights.
This has failed to substantively address the eradication of such issues based on the insufficiency and ineffectiveness of current protective measures, which undercut the pledge to strengthen concrete domestic protection of some of the most pertinent human rights concerns.
In this most recent UPR cycle, UN member states — for the first time since South Africa’s participation in the mechanism — submitted advanced questions and recommendations concerning the protection of human rights defenders (HRDs).
In the various submissions, concerns were raised about the increasing attacks against human rights defenders and whistle-blowers, as well as the widespread impunity for the killings of such groups.
Sweden and Uruguay recommended that South Africa should adopt an HRD-effective legal framework and protection mechanism, with Uruguay emphasising the specific needs of anticorruption activists and environmental defenders.
More specifically, Switzerland urged the South African government to investigate the killings of human rights defenders, with a particular mention made of the failure to fully investigate 22 of the 24 killings of members of Abahlali baseMjondolo.
Germany also raised this in the form of an advanced question.
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As noted by international civil society organisation Civicus in its UPR submission, a total of five recommendations were made to South Africa on issues concerning civic space, specifically on the rights relating to freedom of expression, media freedom and access to information in its previous UPR cycle.
To date, only one recommendation has been partially implemented. This relates to the amended Film and Publications Act, which came into effect on 1 March 2022.
Nonetheless, there are concerns that the amended legislation could be used to suppress internet content because it gives the Film and Publications Board broad leeway to determine what is appropriate to post online.
In response to issues and recommendations made by various UN member states on the protection of human rights defenders and the shrinking civic space, the South African delegation argued strongly that there was no oppression against such groups, but that private actors who are in conflict with HRDs are responsible for such attacks and not the state.
Such an argument remains deeply troubling for two reasons:
- Although it is true that some of the cases concerning the killings of human rights defenders were committed by private actors, there is ample evidence that state actors have also been perpetrators of such attacks. For instance, in the murders of Thuli Ndlovu and Nqobile Nzuza, both members of Abahlali baseMjondolo, two ANC councillors and a hitman were sentenced to life imprisonment for the murder of Ndlovu. A police officer was convicted of the murder of Nzuza.
- The same can be said for the killings of 34 Marikana mineworkers, in which various government officials were implicated, as well as for the murder of Babita Deokaran who was targeted after exposing corruption in the Gauteng Department of Health.
In her 2020 report to the Human Rights Council entitled “Final warning: death threats and killings of human rights defenders”, the UN Special Rapporteur on HRDs concludes by making the finding that “governments are failing in their moral and legal obligations to prevent the killings of human rights defenders…States can and should intervene to prevent killings by responding more effectively to threats against human rights defenders”.
In the months leading up to her brutal assassination for resisting the expansion of a coal mine, Fikile Ntshangase reported the numerous death threats she received telephonically to the police. No investigations were made and today we speak of her in the past tense. The same can be said for the three eKhenana branch activists of Abahlali baseMjondolo, all murdered within a space of five months. They all took several steps to report the attacks against them, including submitting a report to the South African Human Rights Commission. All these killings could have been prevented if the government also fulfilled its duties of protecting HRDs and prevented widespread impunity against such attacks.
Although South Africa has shown its commitment to engaging with the UPR mechanism, the government’s failure to holistically address the actual situation of human rights defenders on the ground has been disappointing.
At the moment, South Africa has 21 standing invitations to various UN mechanisms that it needs to consider. The UN Special Rapporteur on the situation of HRDs has asked to make an official visit twice, but has not received a response from the government.
Although the South African delegation argued that human rights defenders are able to engage with local remedies when their rights are violated, this response demonstrated great ignorance of the challenges faced by such groups, such as a lack of political will by state institutions to attend to their cases.
Starting from 1 January 2023, South Africa will start to serve its three-year term on the Human Rights Council. This places a greater responsibility on the country to advance and uphold human rights, both domestically and globally.
Nonetheless, it can be all too simple for South Africa to disregard the UPR recommendations made on the protection of human rights defenders and civic space.
In the coming years, it is crucial for civil society and human rights defenders to take deliberate measures that will place increased pressure on the South African government to realise that the protection of HRDs cannot be ignored in a democratic society. DM/MC
Bongani Ngwenya holds a Bachelor of Laws degree (LLB Hons) from the University of KwaZulu-Natal. He drafted the Legal Defence Fund Policy for Chapter One Foundation in Zambia and has done extensive research into the state of civic space in southern Africa.
Simphiwe Sidu works as a regional legal adviser for the Southern African Human Rights Defenders Network. She holds an LLB degree from the University of KwaZulu-Natal and an LLM in International Human Rights Law from the University of Notre Dame, US.