GivenSouth Africa’s rapid transition from a repressive, authoritarian regime to a democratically elected government it was obvious that building the type of human rights culture enshrined in the country’s constitution would take time. However, the past few years have seen a weakening, rather than a strengthening, commitment to human rights on the part of the government. An apparent contempt for the rights of members of the public, combined with administrative malfunctioning, is conspicuous in the fields of land reform, health, the rights of women and foreign asylum seekers, and – especially – the criminal justice system. Compounding problems is a growing culture of secrecy – an unwillingness to divulge information to the public – which has serious implications for democracy.
The stated intention of the government to ‘review’ Constitutional Courtdecisions is ominous. What is needed, urgently, is a review of the failure of government departments to implement Constitutional Court decisions. The blame for lack of transformation must be laid at the door of the government, not the court, as the Mangete example demonstrates. Almost ten years after a land claim was supposedly settled the claimants have not benefitted, since control over the trust which was established was given to the local chief, who was not a claimant, and his associates. In 2010 the Master’s office removed these trustees because of their irregular handling of trust affairs. When those who had been removed tried, irregularly, to hold new elections for trustees the claimants were obliged to obtain an interdict against them. Claimants’ committee members are currently have good reason to fear for their lives since they are trying to hold elections for new, credible trustees. Despite the local incumbent being in serious breach of traditional leadership legislation, the provincial government ignores calls to suspend him.
Many of the claimant families continue to live, illegally, on privately owned farms, and could be removed at any time, in terms of a high court interdict – and this is where the Constitutional Courtjudgement relating to a similar situation on the Modderklip farm is relevant. While not under claim, Modderklip, in the PWV area, had been subject to the same type of massive land invasions as Mangete. Fearing the consequences of removing such a large number of people, its owners sought Constitutional Courtrelief. The court ruled that it was the job of the state – not the landowners – to take action against the illegal occupants, and that it should act in the interests of both the occupants and the owners (and this in the absence of a settled claim). Apparently ignoring this judgment, the Department of Land Affairs has wilfully infringed the rights of the land owners and the claimant alike despite the supposed settlement of the claim..
The Department of Health in KZN also rides roughshod over people’s rights, as the sorry saga of the male circumcision drive in KZN shows. Based on highly questionable science,[i] men are exhorted to undergo circumcision to reduce the risk of female-to-male transmission of HIV. Those opting for circumcision are not provided with the full information which is ethically mandatory before undergoing a medical procedure, and nor are they are not given a choice of procedures. The notorious Tara Clamp is used, which is not only painful but has been linked to injury (a press article has alleged that it is distributed by a man with close connections to the ANC). The breach of these ethical rules by doctors is actionable through the HPCSA. This department is also responsible for the shambolic state of forensic services, which infringes the rights of bereaved relatives of deceased people taken to mortuaries, and severely compromises the quality of forensic evidence. The Department steadfastly refuses to answer questions about these human rights issues, and approaches to provincial and national portfolio committees – who are supposed to monitor ministers and MECs – appears a fruitless exercise.
Among the most repressed women in South Africa are those living in rural areas, and their position will deteriorate further if the government goes ahead with enacting the Traditional Courts bill, which is discriminatory and insulting to black people, especially women. Women everywhere continue to suffer because of the failure of the too many police members to take the Domestic Violence Act seriously. The treatment of victims of rape and domestic violence by police based at Umbilo police station is well documented. In one recent case, that of Nokuthula Cele, police failed to arrest a former boyfriend who was terrorising her, and stealing her goods, despite her having a Peace Order against him. He then attempted to kill her, and she needed thirteen stitches in her head. Despite this case against him he has not been locked up, and continues to threaten her and steal from her. Physically and emotionally traumatised, and financially drained, she lives in constant fear of her life.
There has been a noticeable shift in government policy towards asylum seekers fleeing their countries of origin because of threats to their lives. From narratives of those trying to engage with Home Affairs Refugee Reception Centre in Durban, due legal process set out in governing legislation are being observed. As a consequence, refugees are being rounded up and placed in Westville prison prior to repatriation to countries where they may face torture or death. Prisoners inSouth Africa, too, suffer gross abuse (e.g. rape), and even death, at the hands of the prison gangs who operate with impunity. Double standards are evident in special treatment offered to high profile accused such as British national Shrien Dewani.
Police brutality is rife, and is accompanied by a conspicuous absence of strong leadership and management in the service plus a growing lack of accountability. From the Ministry down, relatively few members of management have the courtesy to respond to queries sent on behalf of crime victims. Most victims of abuse fear to open cases because of high levels of intimidation. In the Port Shepstone policing cluster a group of TRT (Tactical Response Team) members have beaten up an unknown number of people, without provocation, One brave young community leader who did open a case has had to go into hiding because of threats to his life, and there are fears for the safety of his family. The conduct of police management in obstructing due legal process in this matter has been disgraceful. There are, however, encouraging signs of improved investigation by the Independent Complaints Directorate.
The failure of government departments to respond to issues raised by human rights defenders, and to provide relevant information, makes it increasingly difficult to prevent abuses and to deal with them constructively when they occur. Even in parliament, increasing numbers of questions put to ministers remain unanswered. The government’s growing obsession with secrecy – its failure to provide information (e.g. about a house purchased with taxpayers money for an executive member, or presidential travel extravagance), and the witch-hunts for those who leak information to the media, borders on paranoia. The free flow of information, the rule of law, and the independence of the courts are the lifeblood of democracy – and any threat to democracy places the rights of all citizens in jeopardy.
[i] See, e.g. Dr Daniel Ncayiyani, ‘The illusive promise of circumcision to prevent male-to-female HIV-infection – not the way to go for South Africa’ in South African Medical Journal Vol 101, No 11.
This is but one of a fairly substantial body of critiques of the studies used to justify the roll out of male circumcision