Human Rights Day 2009: Stand Up For Your Rights South Africans

As we celebrate our fifteenth Human Rights Day we should reflect on our failure to build a broadly based human rights culture as a bulwark against the threatened erosion of constitutional rights. A year after the advent of democracy the late legal academic Etienne Mureinik drew attention to the way in which what he termed ‘irrational responses’ to brutal crime posed a threat to human rights.*  Fourteen violent years later attitudes have hardened, and populist politicians garner support with threats to curtail existing rights.  Blaming human rights for our social ills serves to deflect attention from their own responsibility for failing to curb crime.

Seductive as the crime weary public may find exhortations to ‘shoot to kill’, and threats to clamp down on the rights of those arrested, support for such utterances is extremely dangerous. Not only do they undermine the rule of law, but any diminution of existing rights can only facilitate the creeping abuse of power by the state. There is nothing wrong with the law : It is the way that it 8is being implemented (or often not implemented) that presents problems. Transparency and public accountability have diminished in the past decade, with many civil servants showing an arrogant disregard for the taxpayers who fund their salaries. The Land Claims Commission refuses to provide documentation to which the public is entitled and the SAPS fail to respond to queries and to provide information which is in the public interest.

Existing laws giving flesh to the bare bones of constitutional freedoms are crucial since they can be used to hold government accountable, including through class actions.  However, with certain exceptions, the type of civil liberties groupings that drive such processes in well established democracies are not strongly developed in South Africa. Surely the threats which have been made to the freedoms and rights we now take for granted should serve as a wake up call to oppose their erosion?

The topical issue of privacy illustrates the importance of public vigilance and, if necessary, action, to uphold rights.  Section 14 of the Bill of Rights guarantees everyone’s basic human right to privacy yet the eThekwini municipality has aroused public ire by requesting details about the incomes of pensioners applying for property rates rebates. By now legislation detailing how this right will be safeguarded should have been promulgated, but a Protection of Personal Information bill, drafted by the Law Commission, has not yet seen the light of day.

The Ministry of Justice and Constitutional Development, which has dragged its heels for six years over the Protection of Personal Information bill has, however, prioritised the Criminal Law (Forensics Procedures) Amendment Bill 2009. This bill allows for the SAPS to establish a massive DNA database, without providing adequate controls for protecting individual and family privacy.  Public comment on this bill has been scant, in stark contrast to the vigorous lobbying which takes place in other countries about issues relating to DNA.

Nor is there any public debate about the invasion of privacy by the extensive use of surveillance techniques, especially CCTV cameras. That these cameras may prove valuable in catching criminals should not preclude critical debate – any more than the undoubted value of DNA in criminal matters should.  Like DNA though, CCTV footage can be misused.  Are all of those who operate the cameras free of any criminal association? While operators are all required to register with the Private Security Regulatory Authority (PSIRA), the Authority lacks the capacity to deal with huge numbers of illegal security service providers.

Why, when these cameras are ubiquitous in places such as banks are so few criminals caught? What happens to the footage collected? Although the United Kingdom is described as the most watched country on earth, its Data Protection Act attempts to govern the use of CCTV cameras, and stipulates that the public must be informed that they are under surveillance.

To argue, as some might, that privacy concerns should play second fiddle to tackling crime is to miss the point. Both DNA and CCTV footage can be used for criminal purposes, and the failure to pass legislation protecting personal information may facilitate its use by criminals, especially in this computerised age.

Experience elsewhere in the world shows that the defence of constitutional rights is too important to be left to politicians of whichever persuasion. Although South Africa would benefit from more civil liberties bodies, existing groups could be used more effectively for the defence of rights – as in the UK where a wide range of professional bodies, associations and NGOs recently joined forces with Privacy International to oppose a clause in a parliamentary bill posing a threat to privacy.

Human rights issues under threat in our country include freedom of expression, privacy and those linked to criminal justice system. The sooner we organise, the better. As Mureinik warned, beware of irrational responses to violent crime – and of using human rights as a scapegoat for a malfunctioning criminal justice system. Bad things happen when good people remain silent. As individuals or as groups we should form networks – as in the UK – to oppose any diminution of our constitutional rights, no matter how minor it may appear.

*Quote from Etienne Mureinik article ‘Crime panic threatens our rights’ in Mail and Guardian November 24-30 1995