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South African Human Rights Commission

Presentation to Portfolio Committee on International Relations and Cooperation15 September 2010

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Xenophobia & South Africa’s international human rights law obligations

The South African Human Rights Commission, Processes and Challenges

Themes

1. South Africa’s international human rights law obligations generally and more specifically in relation to xenophobia

2. The “Report on the SAHRC Investigation into issues of Rule of Law, Justice and Impunity arising out of the 2008 Public Violence against Non-Nationals.”

3. The link between compliance and strengthening the promotion and protection of human rights, particularly for non nationals

4. The role of the SAHRC and what it does in relation to international and xenophobia work

Overview

The South African Human Rights Commission

South Africa’s international human rights obligations

UN recommendations to SA The role of the SAHRC The role of Parliament

The South African Human Rights Commission

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The SAHRC mandate & strategic objectives Constitutional mandate, Section 184 Strategic Objectives – 2010/2011

A. Promotion of respect for and a culture of human rights

To provide leadership and guidance in the achievement of the Commission mandate through the facilitation of the SAHRC agenda at international, regional, national and provincial levels

B. Promotion of the protection, development and attainment of human rights

C. the monitoring and assessment of the observance of human rights

To advance human rights though legislation monitoring and assessment of national compliance to regional and international human rights treaties

Parliamentary & International Affairs Programme (PIAP) Established April 2007 1 of 9 SAHRC Programmes (Operations e.g.

Education and Training Programme; Research, Documentation and Policy Analysis Programme; Legal Services Programme, PAIA sub-programme & Corporate Services)

Staff, HoP, Snr. Researcher, 2 Researchers, Admin Secretary, International interns

Based in Cape Town

South Africa’s international human rights obligations

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Introduction

The United Nations oversees a number of international treaties that bind state parties to protect and to take positive action to facilitate the enjoyment of basic human rights.

By adopting these treaties, member states send a strong message to the world community about their commitment to defending human rights.

This commitment is not only symbolic, however; states that ratify international human rights treaties must implement domestic measures and legislation compatible with their treaty obligations and duties.

To demonstrate their compliance, states must abide by the treaty guidelines and periodically report to United Nations committees. Independent bodies of experts form the committees that monitor implementation by reviewing state reports and issuing concluding observations and recommendations. Although the exact reporting requirements vary, typically state parties must submit an initial report within one year of ratifying a convention. Periodic reports are subsequently due at regular intervals set by each committee. Additional reports may be required if state parties have acceded to any optional protocols.

Function of UN Treaty Body

Consideration of State Parties Reports

Consideration of individual complaints or communications

Publish General Comments and host discussions

UN Treaty Bodies Recap

UN Treaty Body System9 Major Conventions

1. International Covenant on Civil and Political Rights (ICCPR) (1966) and its Optional Protocol. SA Ratified

2. International Covenant on Economic, Social and Cultural Rights (ICESR) (1966). SA signed not ratified

3. International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (1965). SA Ratified

4. Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (1979). SA Ratified

Treaty Bodies cont…

5. The Convention Against Torture and other Cruel, Inhuman or Degrading Treatment (CAT) and its Optional Protocol (OPCAT) (1984). SA Ratified CAT & signed OPCAT

6. Convention on the Rights of the Child (CRC) (1989). SA Ratified

7. International Convention on the Protection of All Migrant Workers and Members of their Families (ICRMW) (1990) SA not signed or ratified

Treaty Bodies cont. …

8. Convention on the Rights of Persons with Disabilities (CRPD) (2006) SA ratified

9. International Convention for the Protection of All Persons from Enforced Disappearance (ICPED) (2006) SA not signed or ratified

SA’s reporting status

International Covenant on Civil and Political Rights (ICCPR) – Initial report due March 2000

International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) SA – 1998 r 1/2

South Africa appeared before the committee in November 2006 and presented initial, 2nd and 3rd report.

15 August 2007 progress report outstanding, hate crimes, xenophobia

9 January 2010 periodic report outstanding since 9 January 2010

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) SA – 1995 r ¼

SA submitted its consolidate 2nd, 3rd & 4th report to Committee in 2009 covering period 1998-2008.

SA’s reporting status cont. …

The Convention Against Torture and other Cruel, Inhuman or Degrading Treatment (CAT)

Follow up report overdue since 7 December 2007 2nd periodic report overdue since 9 January 2010

Convention on the Rights of the Child (CRC) (1989). SA Ratified

SA’s 2nd and 3rd periodic report overdue since 2002 and 2007

Convention on the Rights of Persons with Disabilities (CRPD) (2006) SA ratified

Report due on 2 May 2010

African Regional System

Not as specific as international system for today’s discussion African Charter on Human and People’s Rights, 1981

SA reports outstanding since 2005 African Charter on the Rights and Welfare of the Child In terms of Article 62 - submit a report on legislative and other

measures every 2 years Reporting has been criticized as arduous and too heavy a

burden resulting in many states not reporting or reporting late Quality of reports have been a matter of concern due to lack of

expertise, resources or political will Makes General Comments

UN Recommendations to SArelated to xenophobia

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CERD Recommendation 27 made in 2007

The Committee recommends that the State party strengthen its existing measures to prevent and combat xenophobia and prejudices which lead to racial discrimination, and provide information on the measures adopted with regard to promoting tolerance, in particular in the field of education and through awareness-raising campaigns, including in the media.

CERD Recommendation 31 made in 2007

The Committee wishes to encourage the State party to ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families

CERD Recommendation 21 made in 2007

........ State Party to accelerate measures to address asylum application backlog. ....

CAT Recommendation 16 made in 2007

16. The Committee is concerned with the difficulties affecting documented and undocumented non-citizens detained under the immigration law and awaiting deportation in repatriation centres, who are unable to contest the validity of their detention or claim asylum or refugee status and without access to legal aid. The Committee is also concerned about allegations of ill-treatment, harassment and extortion of non-citizens by law enforcement personnel as well as with the absence of an oversight mechanism for those centres and with the lack of investigation of those allegations (arts. 2, 13 and 16).

The State party should take all necessary measures to prevent and combat ill-treatment of non-citizens detained in repatriation centres, especially in the Lindela Repatriation Centre,

provide non-citizens with adequate information about their rights and the legal remedies available against any violation of these rights and

continue to accelerate its measures to reduce the backlog of asylum applications.

Prompt, thorough and independent investigation of all allegations of ill-treatment of non-citizens should also be ensured and an effective monitoring mechanism should be established for those centres.

CRC Recommendation 14 made in 2000

Data collection

14. The Committee is concerned that the current data collection mechanism is insufficient to afford the systematic and comprehensive collection of disaggregated quantitative and qualitative data for all areas covered by the Convention in relation to all groups of children in order to monitor and evaluate progress achieved and assess the impact of policies adopted with respect to children. The Committee recommends that the system of data collection be reviewed with a view to incorporating all the areas covered by the Convention. Such a system should cover all children up to the age of 18 years, with specific emphasis on those who are particularly vulnerable, including girls; children with disabilities; child labourers; children living in remote rural areas, including Eastern Cape, Kwa Zulu-Natal and the Northern region, as well as other disadvantaged Black communities; children belonging to the Khoi-Khoi and San communities; children working and/or living on the streets; children living in institutions; children of economically disadvantaged families; and refugee children. Technical assistance in this area from, inter alia, UNICEF is encouraged.

CRC Recommendation 18 made in 2000

Non-discrimination

18. While the Committee notes that the principle of non-discrimination (article 2) is reflected in the new Constitution as well as in domestic legislation, it is still concerned that insufficient measures have been adopted to ensure that all children are guaranteed access to education, health and other social services. Of particular concern are certain vulnerable groups of children, including Black children; girls; children with disabilities, especially those with learning disabilities; child labourers; children living in rural areas; children working and/or living on the streets; children in the juvenile justice system; and refugee children. The Committee recommends that the State party increase its efforts to ensure implementation of the principle of non-discrimination and full compliance with article 2 of the Convention, particularly as it relates to the vulnerable groups.

CRC Recommendation 35 made in 2000

Refugee and asylum-seeking children

35. While the Committee notes recent legislative reform to guarantee greater protection of the rights of refugee and asylum-seeking children, it remains concerned about the absence of formal legislative and administrative measures to ensure family reunification and to guarantee the right of access to education and health for refugee children. The Committee recommends that the State party develop a legislative and administrative framework to guarantee and facilitate family reunification. Additionally, it is recommended that the State party implement policies and programmes to guarantee adequate access to all social services for refugee and asylum-seeking children. The Committee further recommends that the State party reinforce its efforts to finalize its adoption of the 1951 Convention relating to the Status of Refugees and the 1967 Protocol.

CEDAW

No recommendations in respect of refugees or asylum seekers in 1998 recommendations from Committee.

No mention in South Africa’s recent 2009 report of refugees and asylum seekers.

Universal Periodic Review

UPR is new mechanism established by the Human Rights Council (HRC).

Its aim is to improve the human rights situation on the ground, in every UN member state, by assessing the fulfillment of each country’s human rights obligations and looking at positive developments and challenges in this area.

All member states will be reviewed, in sessions, over a period of four years.

South Africa was reviewed in the first session, which took place in April 2008.

UPR Recommendation 10 April 2008

10. Recommended that the mechanisms for supervising procedures be established or strengthened, including the procedure for recognition of the status of refugees and deportation of foreigners, with a view to ensuring the right to a hearing and thus close the door to possible abuses and complying with the principle of non-refoulement (Mexico);

UPR Recommendation19 April 2008

19. Recommended that South Africa make available to the Human Rights Council, as an example of sharing best practices, some of its initiatives relating to combating racism and xenophobia as well as promoting tolerance and coexistence among ethnic and religious minorities (Jordan);

The role of the sahrc

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SAHRC & International Work

National human rights institutions & the Paris Principles

SAHRC has “A” status at the UN OHCHR The evolving role of NHRIs at an international level NHRIs distinct from government and civil society SAHRC establishment of Parliamentary &

International Affairs Programme in April 2007

Broad level

SAHRC Policy Papers Human Rights Development Report ICESCR Ratification campaign Universal Periodic Review / APRM

Engagement with NHRIs and role of NHRIs within UN system & UN reform

Treaty Body Database International & Regional HRs CD Toolkit

Specific level

Section 5 Committee Torture Criminalisation of torture Ratification OPCAT (Drug Rehab Centre

research) Establishment of NPM

Section 5 Committee Disability CRPD Awareness raising, CRPD Toolkit Monitor & engage with report writing process Living in the community Research

Specific level cont. ….

CERD Interim report Hate crimes legislation Xenophobia

CRC Establishment of section 5 committees Ongoing violence against children / corporal

punishment work

Challenges within the reporting context

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Does this matter?

South Africa is not complying on time with its international human rights reporting obligations.

The importance of international engagement Demonstrates the States commitment at an

international level, amongst peers, of its commitment to human rights

Demonstrates to citizens that the State is committed to human rights and is willing to be accountable at an international level

Provides opportunities to reflect on the promotion, protection and realisation of rights within a country

Provides opportunity to benefit from advice through the recommendations of international experts.

Provides opportunities for technical assistance to be provided to the State through the UN mechanisms

The South African context

International exclusion prior to 1994 The Constitution as the centre of human rights No tradition / experience of participating at an

international level Lack of knowledge, awareness, capacity and

experience Alignment of departmental reporting systems to UN

reporting requirements? Prioritisation of reporting and follow up?

Can migration be ignored?

The impact of poverty, conflict and environmental degradation will all ensure that there will be a continued flow of people into South Africa from elsewhere on the continent. For economic, political and humanitarian reason we will continue to host people.

Migrants face many challenges, they have fled their own countries, often do not speak the local south African languages or understand the culture. They are disconnected from their families and support networks. They are accused of stealing jobs from locals.

The phenomenon is not limited to South Africa, increasingly spreading across Europe as the impact of the world economic crises worsens.

impunity arising out of the 2008 public violence against non-nationals”

“REPORT ON THE SAHRC INVESTIGATION INTO ISSUES OF RULE OF LAW, JUSTICE AND

XENOPHOBIA

May 2008, approximately 200 000 displaced and 62 persons killed

Rapidly spread throughout the country Lack of preparedness by all actors Number of reports and analysis conducted SAHRC report on rule of law, justice and

impunity

The SAHRC Report

Detailed analysis and recommendations in respect of one particular aspects of the crises.

Rationale for this, impunity undermines the rule of law

The rule of law is a precondition for the realization of rights

Many human rights aspects that could be analyzed. Over 200 recommendations to different government

departments in the report Will link recommendations to the work of the

Committee.

Findings & Recommendations 1. Anti Xenophobia campaigns F Prior awareness raising and anti xenophobia campaigns did

not prevent hatred and resentment of foreigners from reaching unprecedented levels in 2008 (section 2.6.)

R Develop specific guidelines on the DHA’s legislated xenophobia prevention and deterrence mandate. (to DHA)

R Through the Counter-Xenophobia Unit (CXU), assist in municipal local integrated development planning for social cohesion (to DHA) We therefore remain uncertain what works in countering

xenophobic attitudes

Responding to UPR and CERD?

2. Education and Awareness raisingF There is little institutional memory of conflicts prior to 2008, and little evidence of sustained commitment to the resolution and management of past conflicts, which could otherwise have informed prevention and mitigation responses in May 2008. (section 2.1.)

R Work with the DHA and the SAHRC to incorporate issues of migration and xenophobia into the national syllabus to DoE

R Develop specific guidelines on the DHA’s legislated xenophobia prevention and deterrence mandate.

R Through the CXU, work with the DoE and SAHRC to incorporate issues of migration and xenophobia into the national syllabus to DHA

R Extend the CXU’s counter – xenophobic performances to all schools in and around areas affected by violence. To DHA

R Advocate for the establishment of a specialized implementation agency in relation to the National Action Plan (NAP) to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance. Ensure that the NAP is popularized among residents from at risk communities. To DOJCD

Responding to CERD, CAT & UPR recommendations?

3. Lindela Repatriation Centre

F Other weaknesses in the engagement of the DHA with displaced persons may have resulted in administrative injustices against displaced persons (section 3.2.3.)

R Ensure that detainees at Lindela Repatriation centre have access to legal counsel prior to deportation and eliminate undue administrative delays to such a consultation To DHA

R Enter into a Memorandum of Understanding with a civil society legal service providers to monitor human rights at Lindela until such time as a separate review mechanism for immigration detention is established. To SAHRC

Responding to CERD, CAT, UPR

4. Legislation and implementation thereof R Develop hate crimes legislation and

support measures to institute it. R Ensure training in matters pertaining to

hate crimes once such legislation is put in place.

There is The Prohibition of Racism, Hate Speech, Xenophobia and Related Intolerance Bill, due to be submitted to Cabinet.

Responding to CERD, CAT, UPR

The role of parliamentFor discussion

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1. Ensuring that SA sign and ratifies major Treaties

Parliament can assist in persuading the Executive to ratify outstanding Conventions, for example: International Covenant on Economic, Social and Cultural Rights

(ICESR) signed 1994 A 2007 report by the National Assembly and the National Council

of Provinces Parliament of South Africa, Joint Coordinating Committee on the African Peer Review Mechanism, stated that there “is no apparent reason for the country’s failure to ratify the Covenant because it imposes no greater duties than the Constitution.”

Current civil society campaign to ratify Optional Protocol to the Convention against Torture (OPCAT) International Convention on the Protection of All Migrant

Workers and Members of their Families (ICRMW)

2. Ensuring that SA complies with its reporting obligations

Exercise oversight in order to determine the reasons and causes for South Africa’s delays in complying with its reporting obligations.

Engage with the reports that are prepared for the Treaty Body Committees

Ensure that the previous recommendations of the Treaty Bodies are addressed.

Continuously exercise oversight in respect of recommendations.

3. Exercising oversight generallyFew last points for discussion

1. What is role of individual MPs when xenophobic incidents or statements occur?

2. How can Parliament exercise oversight over law enforcement and immigration officials?

1. R Political parties: Take appropriate action with respect to councillors about whom complaints are received

3. How do MPs ensure that members of their own political parties who are councillors desist from any xenophobic actions?

4. In times of heightened xenophobic social tensions, what is the role of Parliament?

Contact Details

Parliamentary and International Affairs Programme – South African Human Rights Commission

Head of Programme: Judith CohenEmail: jcohen@sahrc.org.za; stula@sahrc.org.za Tel: 021 426 2277Fax: 021 426 2875

132 Adderley Street, 7th floor ABSA Building