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Presented by: Judith Cohen, SAHRC Head of Programme, Parliamentary & International

Affairs

Presented to the Portfolio Committee on Social Development

24 November 2010

Background:

South Africa’s Constitution (1996) enshrines the supremacy of the Constitution and the rule of law. The Constitution also contains the Bill of Rights, which it describes as the 'cornerstone of democracy in South Africa' and compels the State to 'respect, protect, promote and fulfil the rights in the Bill of Rights'.

Recognising that the protection and promotion of human rights cannot be left to individuals or the government, Chapter Nine of the Constitution creates independent national institutions, subject only to the Constitution and the law, to transform our society from its unjust past and to deliver the fundamental rights in the Constitution to all in South Africa.

The South African Human Rights Commission (SAHRC) is one such national institution, which derives its powers from the Constitution and the Human Rights Commission Act of 1994. It is also given additional powers and responsibilities by other national legislation.

The SAHRC works with government, civil society and individuals,both nationally and abroad, to fulfil its Constitutional mandate.

Section 184 of The Constitution of the Republic of South Africa, Act 108 of 1996 specifies the functions of the South African Human Rights Commission:

 '(1) The Human Rights Commission must-

(a) promote respect for human rights and a culture of human rights;(b) promote the protection, development and attainment of human rights; and(c) monitor and assess the observance of human rights in the Republic.

(2) The Human Rights Commission has the powers, as regulated by national legislation, necessary to perform its functions, including the power -

(a) to investigate and to report on the observance of human rights;(b) to take steps to secure appropriate redress where human rights have been violated;(c) to carry out research; and(d) to educate.

(3) Each year, the Human Rights Commission must require relevant organs of state to provide the Commission with information on the measures that they have taken towards the realisation of the rights in the Bill of Rights concerning housing, health care, food, water, social security, education and the environment.’

SAHRC struggled to respond within the boundaries of its mandate and on the required scale during 2008. Commitment is needed to better respond in case of a recurrence.

SAHRC was slow to respond to the 2008 violence Attempts at coordination of stakeholders not very effective Uncertainty about what standards to apply in evaluating conditions in sites Inconsistent monitoring across provinces Should have taken a stronger position on closure of Gauteng sites Lack of adherence by government stakeholders to SAHRC recommendations SAHRC has produced a policy paper to guide its response to future complex

disasters, and a report describing and evaluating its response in 2008

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SAHRC currently monitoring the implementation of recommendations from its report as pro-active measures Written follow up requests for written submissions with reporting template from all

state departments Finalizing localized investigation report for WC Equality Court Participation in multi-stakeholder NGO forums eg SACC civil society forum, SAHRC

provincial offices hosting similar forums (WC, Limpopo & KZN); continued participation in Protection Working Group and hosting Rule of Law legal service providers

Meetings with UNHCR; UN Protection Working Group and finalization of a funding agreement with UN OHCHR to carry forward its own recommendations in slide 24

Presentations of report done to SAPS Visible Policing Unit; DOJ Development Committee and DG Excom as well as Ekurhuleni provincial Disaster Management Centre

High level engagements and presentation of critical recommendations to JCPS Ministerial cluster; Statement of Commitment from political parties and meeting with Ambassadors of African Countries

Number of presentation to parliamentary portfolio committees on xenophobia5

Impunity undermines rule of law. Rule of law is a precondition for the realisation of rights. Human rights cannot be protected nor redress achieved without access to

justice. Reports already exist on the root causes of the violence- no need for

duplication.

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INTERNATIONAL LAW UN Convention Relating to the Status of Refugees 1951 UN Convention on the Elimination of All Forms of Racial

Discrimination 1965 African Charter on Human and Peoples’ Rights 1981 African Commission Resolution on Ending Impunity in Africa 2005

DOMESTIC LAW The Constitution – right to life, freedom and security of person, freedom of movement;

freedom from discrimination and arbitrary deprivation of property. Immigration Act 2002 – duty to deter xenophobia Refugees Act 1998 – protection against refoulement Disaster Management Act 2002 and National Disaster Management Framework 2005 –

duty to assess, monitor and manage risk

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Background information requested from civil society through Consortium for Refugees and Migrants in SA (CoRMSA)

Submissions requested from nine national government ministries and two Chapter 9 institutions in addition to SAHRC

Submissions requested from three provincial governments most affected in 2008 (Gauteng, KwaZulu-Natal, Western Cape)

Submissions requested from five most affected municipalities (Ekurhuleni, Johannesburg, Tshwane, eThekwini, Cape Town)

Interviews with local police and focus groups with community members in three affected communities (Ramaphosa, Cato Manor, Masiphumelele)

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In July 2010, the SAHRC sent a request to the Minister of Social Development with specific recommendations from its xenophobia report.

Requested feedback from the Department on these recommendations.

No response was received from the Department as yet.

Presentation to the Portfolio Committee will therefore cover: Findings of relevance and specific recommendations to Department of

Social Development General concerns and recommendations to all relevant departments

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Little institutional memory of similar social conflicts prior to 2008 (eg Masiphumelele)

Almost no evidence provided of the resolution and management of pre-2008 conflicts – lost opportunity to learn

Key state institutions have not recorded institutional memory of the 2008 attacks either – eg Ministries of Police, Defence and Military Veterans, Home Affairs, Cooperative Governance and Traditional Affairs (responsible for implementation of Disaster Management Act)

Little evidence provided of state-led conflict resolution initiatives in affected communities post-2008 violence

[In 1998, the DSD noted a high degree of xenophobia against illegal immigrants. It was only in 2008 that the Department drafted a concept paper on exploring the impact of xenophobia within its mandate]

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Recommendation to all relevant government Departments: To compile a documentary record of institutional learning during and after the May 2008 attacks.

Prior to 2008, no mechanism existed to monitor ‘xenophobic’ climate. National Police have since initiated a desk on crimes against non-nationals to attempt to track patterns of crime that might indicate heightened risk.

Information obtained by the desk informs additional deployment of police to at-risk areas

National Police have initiated regular security assessments with regard to xenophobia, and provincial police are notified where appropriate

A representative of National Police participates in the Protection Working Group – a forum for the protection of non-nationals led by UN agencies

Role of NIA remains obscure as it did not make a submission

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Recommendation to all relevant government Departments: Keep early warning records and (a) be clear about the purpose of the activity so that efforts are not duplicated or redundant- (b) monitor and evaluate the early warning mechanism as a tool to prevent civic violence, and (c) make all levels of government aware of it.

More marginal, less visible groups of non-nationals more vulnerable during attacks – eg Masiphumelele

Some groups of non-nationals feel excluded from community structures or choose not to participate as they feel threatened/unwelcome

Yet organised /participating non-national groups more likely to receive assistance Together with CoRMSA, Gauteng Department of Community Safety has begun an

initiative to include non-nationals in Community Policing Forums (CPFs) In 2009, the DSD released its ’10 Year Review of the Population Policy Implementation

in South Africa [1998-2008] on Migration and Urbanisation’. Therein the DSD recommended:

continued monitoring, evaluation and research on social cohesion; Further research on the demographic information on migration patterns of international migrants into

communities; and, The compilation of community profiles in order to understand community dynamics.

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Recommendations to DSD: *Through a Social Cohesion Group, arrange a workshop between parties to community mediation and proactive reintegration initiatives throughout the country to establish some best practice guidelines.*Ensure that the Social Cohesion Working Group deliberates and nominates a lead department to develop provincial conflict resolution capacity for the purpose of developing, restoring and maintaining social cohesion in areas affected by social conflict.

Affected areas tend to share: 1) poor relationships between local residents and key officials; and 2) indifferent, corrupt or authoritarian leaders

Trust in police poor across all areas visited – encourages withdrawal from the official justice system

Prevalent feeling that communities must rely on their own devices to care for and protect themselves.

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Recommendation to DSD: • DSD policymakers should realise the potential role of local institutions in mitigating or inciting violence and make provision for improved oversight on such bodies.• DSD should ensure that its social cohesion policy recognises nuances and in the concept of ‘community’ as during the violence many ‘community leaders’ used undemocratic measures to the detriment of both migrant rights and community safety. • The DSD should place more emphasis on the importance of meaningful disciplinary or judicial outcomes where community leaders obstruct social cohesion through negligent indifference, corruption or personal agendas.

Prior campaigns failed to prevent violence against non-nationals Roll-Back Xenophobia campaign, 2004 Open Hearings, DHA Counter-Xenophobia Unit

(CXU) – lack of systematic monitoring or evaluation- did not prevent the hatred, resentment and unprecedented levels of violence.

National Action Plan (NAP) to combat Racism makes recommendations, but has no implementing mechanism

According to the DSD ‘myth-busting’ is important in promoting community cohesions as behaviour is often based on perceptions or hearsay.

The DSD should ensure that when a nationbuilding policy is advocated, the risks of cementing prejudices against non-nationals should be pointed out and ways of mitigating this risk outlined.

National government should adopt the DSD’s recommendations in its Population Policy for further research into social cohesion and patterns of migration so as to better understand community dynamics.

14Recommendation to DSD: In nationbuilding policy, acknowledge and mitigate the implicit risk of cementing prejudices against non-nationals

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Recommendations Potential Role of Portfolio Committee

Social Conflict and Monitoring: •Through a Social Cohesion Group, arrange a workshop between parties to community mediation and proactive reintegration initiatives throughout the country to establish some best practice guidelines.

•Ensure that the Social Cohesion Working Group deliberates and nominates a lead department to develop provincial conflict resolution capacity for the purpose of developing, restoring and maintaining social cohesion in areas affected by social conflict.

•Ensure that the appointed lead department continually monitors all conflict resolution initiatives and evaluates them on a quarterly basis, in consultation with station-level police, community policing forums and community forums

•Ensure that the appointed lead department holds an annual indaba to discuss the successes and failures of such initiatives and develop best practice for future initiatives

•Follow-up on the establishment of a Social Cohesion Group and whether workshops have taken place.

•Ascertain which Department has been designated with this particular task and whether they have complied with the stipulated recommendations.

Continued…. Participation in Community Structures and Grassroots Democratic Governance: •Make provision in DSD recommendations on social cohesion for improved oversight of local institutions, especially communities at risk.

•Place more emphasis in social cohesion on the importance of disciplinary or judicial outcomes where community leaders obstruct social cohesion through negligent indifference, corruption or personal agendas

•Ensure that a social cohesion policy recognises nuances in the concept of ‘community’, such as the potential for so called ‘community leaders’ to act against community interests.

•Call on the Department to provide feedback on the progess and implementation of its recommendations in the Population policy, particularly the concerns on social cohesion.

•Follow-up on the finalisation and implementation of the DSD’s Social Cohesion Policy.

Awareness raising and anti-xenophobic campaigns•Work with the DHA on immigration-related aspects of the Population Policy

•In nationbuilding policy, acknowledge and mitigate the implicit risk of cementing prejudices against non-nationals

•Determine if the DSD has engaged with the DHA on immigration matters.

•Ascertain if such policy exist and the progress made.

•Liaise with the Portfolio Committee on Justice and Constitutional Development on legislation pertaining to hate crimes.

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Parliamentary and International Affairs Programme – South African Human Rights Commission Head of Programme: Judith Cohen Email: jcohen@sahrc.org.za /

stula@sahrc.org.za Tel: 021 426 2277 Fax 021 426 2875 132 Adderley Street, 7th floor ABSA Building

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Thank You…