South Africa: South African Human Rights Commission

Updated December 2009

South African Human Rights Commission

Note: See also MUSUVA, C 2009 Promoting the Effectiveness of Democracy Protection Institutions in Southern Africa: South Africa’s Public Protector and Human Rights Commission [PDF document], EISA Research report No 41.

During the negotiations that led to South Africa's first elections on the basis of universal suffrage in April 1994 and the transition from a minority regime to a democratically elected government, much emphasis was placed on the need for new constitutional arrangements to ensure that the appalling human rights abuses of South Africa's past could not be repeated (Human Rights Watch 2001). The South African Human Rights Commission (SAHRC) was established by Chapter 9 of the 1996 Constitution as an independent and impartial institution to promote respect for human rights and a culture of human rights.

The SAHRC derives additional legal mandate from the Human Rights Commission Act 54 of 1994; the Promotion of Access to Information (PAIA) Act 2 of 2000; and the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000. The Promotion of Access to Information Act gives the public the right to access documents held by public bodies and requires the SAHRC to prepare guidelines on how to use the Act, report to the National Assembly each year about requests for information received by government departments, and conduct education of civil servants and the general public on how to exercise the rights given in the Act. Capacity constraints within the Commission have contributed to its failure in this regard (Parliament of the Republic of South Africa 2007). The Promotion of Equality and Prevention of Unfair Discrimination Act, which relates to special measures to promote equality with regard to race, gender and disability has yet to come into operation as the regulations have not been promulgated (Parliament of the Republic of South Africa 2007).

Although the provisions of the constitution and the legislation establishing the SAHRC give it a very wide mandate, the commission has in practice limited its activities to economic and social rights - a narrower range than NHRIs in other countries - so as not to overlap with similar bodies created by the constitution and other legislation. Issues related to administrative justice are dealt with by the Public Protector; complaints against the police are referred to the Independent Complaints Directorate; and women's rights issues are the responsibility of the Commission on Gender Equality.

The SAHRC may investigate abuses, take steps to secure redress, including bringing court cases, and carry out human rights education. It may subpoena witnesses, and has called cabinet ministers before it; it also has powers of search and seizure, though these have not yet been used. On pain of criminal penalty, all organs of state at all levels are obliged to render such reasonable assistance to the commission as it may require in order to conduct its tasks. However, it has no power to enforce its recommendations, or even to require a response. The SAHRC may investigate relations between individuals or between individuals and corporate entities, as well as between the state and its citizens.

The Human Rights Commission Act provides that no fewer than five commissioners may be appointed but it does not stipulate the maximum number that may be appointed. Commissioners are appointed by the President on the recommendation of the National Assembly for a maximum of seven years, renewable once. Nominations from the public are presented to an ad hoc Committee of the National Assembly established for the purpose of recommending appointees. Considering the broad mandate accorded to the SAHRC and the limited resources accorded to it, the number of commissioners is inadequate and continuation of their term of office would be required (Parliament of the Republic of South Africa 2007). The SAHRC is accountable to the National Assembly and submits annual reports to the Portfolio Committee on Justice and Constitutional Development.

The turnover of commissioners has been high. Among staff too, there have been a large number of resignations, especially during the first years of the commission's life- to some extent this can probably be blamed simply on the high mobility among the non-governmental, governmental and private sectors as new opportunities opened up in the years immediately following the 1994 elections (Human Rights Watch Report 2001).

The SAHRC is structured into two sections: the commission itself, which sets out policy and a secretariat that implements policy. The chairperson is the overall head and the chief executive officer is head of the secretariat. The full commission meets in plenary session every two months to review the work of the commission. The commission has divided itself into functional units, and every member has responsibilities for at least one of the nine provinces. The secretariat is divided into five departments: Legal Services; Advocacy; Research and Documentation; Media and Public Relations; Finance and Administration. In addition to salaried staff, the SAHRC has made extensive use of interns, especially in the initial processing of complaints, providing useful human rights training to those engaged. The commission's head office is in Johannesburg; it has provincial offices in Cape Town, Port Elizabeth, Durban, and Polokwane.

The commission has certainly established itself as an important institutional presence and has had the courage to take unpopular stances, in particular speaking out against xenophobia and against public and media calls, driven by widespread concern about violent crime, for constitutional rights "tying the hands of the police" to be diluted. It has produced or collaborated in the production of several substantial reports on a wide range of issues, and has successfully resolved many of the complaints referred to it, giving high profile legal-type rulings in a number of cases. By its attention, the SAHRC has also been able to raise the profile of particular issues that might otherwise have received less public attention. However, there is a perception that the SAHRC only reacts after issues of human rights have been highlighted in the media (HURISA 2007).

Yet although the interventions of the commission have become more substantial and systematic as it has gained experience, some outside observers still criticise it for a lack of focus and thoroughness in its investigations, and in particular for spreading itself too thinly among many issue areas, rather than concentrating on a few where it could remain engaged and make a real difference. Others have criticised some of the SAHRC's interventions as being designed to grab headlines without achieving much. The multiplicity of monitoring bodies created by the constitution and by legislation has led to some confusion. The proliferation of bodies has created overlapping jurisdictions, which is very confusing for the public; it is costly for the taxpayer; and it creates the possibility of unhealthy competition for media attention, resources, and the like, as well as opening the different institutions to future manipulation by the government. Some also believe that the creation of both a human rights commission and a gender commission has had the paradoxical effect of marginalising women's rights issues although others maintain that by establishing a special commission, the Commission on Gender Equality, women's rights have been given a higher profile. Another weakness of the commission, and other Chapter 9 institutions, is the lack of clarity as to the action that should be taken on its recommendations. The SAHRC has itself expressed its dismay at the failure of parliament to debate its reports in a timely manner and in depth (Human Rights Watch Report 2001).

The SAHRC has worked closely with NGO and academic institutions on several projects, and openness to NGO input has undoubtedly strengthened its capacity to conduct research and advocacy on issues such as xenophobia. The SAHRC has put in place public awareness programmes and included human rights education in the school curriculum, although there is need to expand awareness. The relationship between the SAHRC and civil society is unstructured.

Official web site

South African Human Rights Commission: http://www.sahrc.org.za/ [opens new window] (accessed 8 Mar 2010).

References

CONSTITUTION OF THE REPUBLIC OF SA 1996, [www] http://www.info.gov.za/documents/constitution/1996/index.htm [opens new window, incorporates all amendments until 13th Ammendment (2007)] Act No. 108 of 1996; 14-16 Amendments available at http://www.info.gov.za/view/DynamicAction?pageid=612 [opens new window] (accessed 9 Mar 2010); approved by Constitutional Court December 4, 1996; took effect February 4, 1997; amended 1996, 1997, 1998, 1999, 2001, 2002, 2003 (accessed 26 Feb 2010).

HUMAN RIGHTS WATCH 2001 "Government Human Rights Commissions in Africa" IN Human Rights Watch Report 2001.

HURISA 2007 Effectiveness and Impact of Three Constitution Building Institutions in South Africa: South African Human Rights Commission, Commission for Gender Equality, The Public Protector, Johannesburg.

PARLIAMENT OF THE REPUBLIC OF SOUTH AFRICA 2007 Report of the ad hoc Committee on the Review of Chapter 9 and Associated Institutions. A report to the National Assembly of the Parliament of South Africa, Cape Town.