The Centre for Constitutional Rights is pleased to present its fifth annual Human Rights Report Card indicating where, in our opinion, South Africa has been making progress with regard to human rights and where it has been regressing.
We have once again awarded the following grades for human rights in this year’s report card: A = Excellent; B = Good; C = Average; D = Poor; and E = Very Poor. At the same time, the +, = and – signs are used to indicate whether things are getting better, staying the same or deteriorating. We have also included last year’s grade for comparison.
SOUTH AFRICA’S PERFORMANCE DURING 2012
South Africans, in principle, enjoy the full spectrum of human rights. Regular national, provincial and municipal elections are held and overseen by an independent electoral commission. The courts function independently and overturn laws and government conduct that is unconstitutional or illegal. South Africans enjoy freedom of expression and free political activity. The media are free and the country has an active, effective and vociferous civil society. Human rights are supported by effective independent institutions – such as the Public Protector and the South African Human Rights Commission. However, other institutions that are intended to support constitutional government are either ineffective or are subject to political influence. The latter include the Judicial Service Commission, which is falling short of carrying out its primary mandate of nominating fit, proper and impartial candidates for judicial office. The abolition of an effective and independent investigation agency and political control of, and interference in, the National Prosecuting Authority are seriously undermining the integrity of the judicial system and efforts to combat pervasive corruption.
The right to participate in government has provided interesting parliamentary and political discourse during the past year. Efforts to limit the role of opposition parties in Parliament through the manipulation of parliamentary rules is chipping away the principles underlying multi-party democracy. Because MPs will lose their seats if they cease to be members of the party that nominated them to Parliament, they are, in practice, accountable to their party leaders and not to the electorate. As a result Parliament has, to a large extent, become a rubber stamp for decisions taken by the leadership of the ruling party and does not properly fulfill its primary role of holding the national executive accountable for its actions and inactions. Instead of fulfilling its proper oversight role the majority does everything it can to protect the president and the Cabinet from criticism and to stifle debate on matters of importance to the electorate.
The Government’s failure to provide effective services – particularly at municipal and provincial levels – has lead to a vast increase in the number of service delivery protests and accompanying violence in communities across the country. According to the police, there were 3 258 such protests throughout South African between 2009 -2012. In addition, the quality of basic education and public health services is often unacceptably poor. The government’s best efforts to address these problems and realise socio-economic rights are increasingly eroded by corruption in the public service, financial mismanagement and the deployment of unqualified political cadres to key positions in all levels of government.
Fundamental rights are interrelated, interdependent and indivisible: the fulfillment – or infringement – of any one of these rights directly influences the attainment or infringement of other rights. There are persistent efforts to undermine or circumscribe some fundamental rights – through new legislation such as the Protection of State Information Act, the Traditional Courts Bill (now withdrawn) and the Legal Practice Bill. As a result, there has been a plethora of protests, outcries and campaigns – most of which are aimed at defending some or other political, civil, economic, social or cultural right.
South Africa can hardly be termed a non-racial democracy. Race continues to be a major dividing factor and continues to determine, de facto and de jure, access to employment and social, educational and economic benefits. Government policies are increasingly race-based and the tone of the national discourse has become disturbingly – and sometimes aggressively – racial with government condoning – or even supporting such tendencies.
Prospects for the future enjoyment of rights have deteriorated.
Perceptions of South Africa during the past year have unfortunately been dominated by the Marikana incident and the recent brutal killing by police of a Mocambican taxi driver in Daveyton. The Marikana incident is currently the subject of investigation by the Farlam Commission and those involved in the Daveyton killing have been arrested and charged with murder. Nevertheless, the two events highlight growing concerns regarding the role of the police in a constitutional democracy.
There is concern over the future role of the judiciary in the wake of criticism of the courts by the government – especially in relation to judicial review of government actions and decisions. In addition, the Legal Practice Bill in its current form will have a negative impact on the independence of the legal profession and could undermine the Rule of Law.
Prospects for freedom of expression remain a concern as a result of the Government’s intention to press ahead with the adoption of Protection of State Information Bill and its increased use of secrecy to avoid explaining excessive and unjustified government spending. This includes – incorrectly so – reliance on the National Key Points Act to limit access to information.
Gender equality and violence against women and children remain a great concern. The Government’s inability to effectively prevent, suppress and prosecute these crimes is exacerbated by our patriarchal society and very high rate of violence and sexual offences.
Effective implementation of the National Development Plan will have a positive effect on the realisation of a number of human rights. The NDP will, however, face resistance from some within the ruling ANC – especially those who support the underlying principles of the National Democratic Revolution.
Increased tension between the national government and provincial governments will see the constitutional principle of cooperative government deteriorate. This is already evident from the Minister of Police’s reaction to a Western Cape government’s commission of inquiry into effectiveness of the South African Police Service in the province.
It is expected that land reform will be a crucial issue this year – which is the centenary of the 1913 Land Act that deprived many black South Africans of their land. The government has announced a new land tenure system which will put a cap on the amount of freehold land that South Africans may own and that will limit the land rights of foreigners to leasehold. Government has announced its intention of accelerating the land reform process but has promised to deal with it within the framework of the constitution.
Some of the factors that can be expected to affect constitutional rights during the coming year include:
- The further development of the ANC’s “second transition” approach – particularly with regard to moves to dispense with 1994 constitutional compromises;
- Further developments relating to the government’s proposed review of the judgments of the Constitutional Court, as well as further statements elucidating its attitude toward the independence of the courts;
- The future behaviour of the JSC and its ability to attract and propose fit, proper and impartial candidates for the judiciary;
- Developments regarding the Legal Practice Bill and the independence of the legal profession;
- Further developments and discussion relating to the Green Paper on Land Reform;
- Further developments relating to the Democratic Alliance’s case against the NPA in relation to withdrawal of charges of corruption against President Zuma;
- Developments regarding the effectiveness of Commission of Inquiry into the Arms Deal;
- Developments relating to the independence – or lack of independence – of the National Prosecuting Authority;
- The willingness of the government to adopt measures to ensure that ‘the Hawks’ will be truly independent of political control;
- The degree to which the SA Languages Act will be brought into line with the requirements in section 6 of the Constitution;
- The progress of the raft of labours bills that were introduced into parliament in 2012;
- Developments regarding violent strikes;
- The ability of the government to realise socio-economic rights including housing, sanitation and water;
- The ability of the government to improve basic education and public health services; and
- The implications of the adoption of the Protection of State Information Bill in its current form – and possible constitutional challenges.