South African Human Rights Commission Rights, February 2015

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South African Human Rights Commission

The right to participate in public affairs

Submission to the Office of the High Commissioner for Human

Rights, February 2015

1. Introduction

The South African Human Rights Commission (SAHRC / Commission) is a constitutional body, established to support democracy. Its mandate and powers are derived from section

184 of the Constitution of South Africa, Act No. 108 of 1996 which states:

184. (1) The South African Human Rights Commission must-

(a)

(b) promote, respect for human rights and a culture of human rights; promote the protection, development and attainment of human rights; and

(c) monitor and assess the observance of human rights in the Republic.

In September 2014, the new South African Human Rights Commission Act 40 of 2013 came into effect, repealing its predecessor the Human Rights Commission Act 54 of 1994. Section

13 of the new Act expands on the powers and functions of the Commission. As a national human rights institution (NHRI) the SAHRC is additionally guided by the Principles Relating

SAHRC Submission to OHCHR on the Right to Participate in Public Affairs, Feb 2015 Page 1

to the Status of National Institutions (the Paris Principles)

.

1

The SAHRC is compliant with the Paris Principles and is currently accredited as an ‘A’ status NHRI.

On the basis on its mandate, the SAHRC therefore responds to the call by the United

Nations Office of the High Commissioner for Human Rights (OHCHR) for information on the right to participate in public affairs as enshrined in Article 25 of the International Covenant on

Civil and Political Rights (ICCPR), and the adoption of Resolution 27/24 by the Human

Rights Council on equal participation in political and public affairs. This submission provides context and information on the enjoyment of the right in South Africa, as well as highlights the various challenges South Africa has faced in implementing Article 25 of the ICCPR.

2. Background on South Africa and the ICCPR

South Africa ratified the ICCPR on 10 December 1998, with entry into force in March 1999.

South Africa acceded to the First and Second Optional Protocols to the ICCPR on 28 August

2002. Although South Africa’s initial report to the Human Rights Committee (HRC) was due in March 2000, it was only in November 2014 that South Africa submitted its report to the

Committee detailing the progress of its implementation of the treaty.

3. Constitutional Rights

The right to participate in public affairs is a central right to the continued strengthening of

South Africa’s constitutional democracy. It was a right which was routinely denied during the years of apartheid, with only the white minority holding voting rights. However, since 1996,

South Africa has protected the right to participate in public affairs as a fundamental freedom under the Bill of Rights,

2

as well as in the Founding Provisions of the Constitution which speaks of ‘universal adult suffrage, a national common voters roll, regular elections and a

1

As adopted by United Nations General Assembly Resolution 48/134 in 1993. In summary, the Paris Principles advises the following to NHRIs to exercise their duties and functions effectively: Monitor at its own discretion any situation where a human rights violation has occurred; Advise the government, parliament and any other competent body on specific violations, on issues related to legislation and general compliance and implementation with international human rights instruments; Promote the implementation and harmonisation of international norms and standards within domestic legislation; Publicise efforts to combat all forms of discrimination; Build relationships with regional and international organisations; and Educate and inform in the field of human rights.

2

Bill of Rights, Chapter 2 of the Constitution of the Republic of South Africa Act 108 of 1996.

SAHRC Submission to OHCHR on the Right to Participate in Public Affairs, Feb 2015 Page 2

multi-party system of democratic government, to ensure accountability, responsiveness and openness’.

3

There are a number of rights in the Bill of Rights which are directly relevant to enjoyment of the right to participate in public affairs in South Africa. These include: the right to equality

(Section 9); the right to freedom and security of the person (Section 12); the right of freedom of expression (Section 16); the right to freely assemble, demonstrate, picket and petition

(Section 17); the right to freely associate (Section 18); the right of access to information

(Section 32); the right to just administrative action (Section 33); and the political rights protected in Section 19 of the Constitution, which states:

19. Political Rights

– (1) Every citizen is free to make political choices, which includes the right

(a) to form a political party;

(b) to participate in the activities of, or recruit members for, a political party; and

(c) to campaign for a political party or cause.

(2) Every citizen has the right to free, fair and regular elections for any legislative body established in terms of the Constitution.

(3) Every adult citizen has the right

(a) to vote in elections for any legislative body established in terms of the Constitution, and to do so in secret; and

(b) to stand for public office and, if elected, to hold office.

4. Public Participation

In addition to the rights mentioned above, the concept of public participation is central to discourse surrounding public administration and service delivery reform in South Africa.

Section 195 of Chapter 10 (Public Administration) of the Constitution provides that ‘the public must be encouraged to participate in policymaking’ as one of the basic values and principles governing public administration.

4

In addition, the Constitution places a duty on the

Houses of Parliament (National Assembly and the National Council of Provinces) and

3

As above at Section 1(c).

4

Section 195 (e), Chapter 10 Public Administration.

SAHRC Submission to OHCHR on the Right to Participate in Public Affairs, Feb 2015 Page 3

provincial legislatures to facilitate public participation when executing their legislative processes.

5

The

Promotion of Administrative Justice Act

3 of 2000 and the

Promotion of Access to

Information Act

2 of 2000 also seek to strengthen the constitutional framework in relation to the right to public participation. The latter extends the provisions for access to state and and private body information by the public as enshrined in Section 32 of the Constitution; whilst the latter legislates for the enablement of the right to written reasons for administrative decisions made, as enshrined in Section 33. In addition, the

National Policy Framework for

Public Participation (2007)

6

outlines public participation principles for local government and identifies minimum requirements which municipalities must meet to fulfill the obligations of participatory governance.

7

In general, therefore, public participation in South Africa denotes meaningful consultation by government with those persons and communities most affected by a particular policy choice; an active adherence by government to the points of views raised by the public; and a continued responsiveness by government to the needs of the people. There have been a number of court judgments which have considered this matter and what constitutes adequate public participation.

8

However, in 2008 the Constitutional Court declared in the matter of

Merafong Demarcation Forum and Others v President of Republic of South Africa and Others,

9

that the decisions made throug h public participation engagements should ‘not conflict with or even override or veto’ the decisions made by the majority rule.

10

The South African Parliament has also initiated a several activities to foster public participation.

11

One such activity is,

“Taking Parliament to the People” undertaken by the

National Council o f Provinces of Parliament (NCOP). It’s primary purpose is:

‘Every year for a period of a week, the full complement of the NCOP sits away from Cape Town and in partnership with the provincial legislatures invites members of the public to raise challenges relating to service delivery.

5

See sections 59(1)(a), 72(1)(a) and 118(1)(a)

6

See, http://www.capetown.gov.za/en/PublicParticipation/Documents/DPLG_Public_Participation_Policy_Final_5_July

%282%29.pdf

7

Ibid,

page 12

8

See,

Matatiele Municipality and Others v President of the Republic of South Africa and

Others

(2) (CCT73/05A)

[2006]

and

Doctors for Life International v The Speaker of the National Assembly 2006 (12) BCLR 1399 (CC).

9

[2008] ZACC10

10

Ibid, para

26.

11

Public participation activities include the People's Assembly, the Taking Parliament to the People programme, the Women's Parliament and the Youth Parliament (sectoral parliaments). See, http://www.parliament.gov.za/live/content.php?Category_ID=21

SAHRC Submission to OHCHR on the Right to Participate in Public Affairs, Feb 2015 Page 4

The programme is mainly taken to people in remote rural areas who lack resources to visit Parliament’.

12

However, there are major challenges of accessibility with Parliament’s approach in this regard as citizens have often criticised that the level of public participation is inadequate.

13

A recent example hereof is the Traditional Courts Bill which was originally introduced in

Parliament in 2008 and then again in 2012 to much controversy. Despite the various content related issues with the Bill, the SAHRC and civil society groups made submissions to

Parliament calling for wider public consultation particularly with those communities and persons who would be most affected by the legislation. Subsequently in 2014, the Bill lapsed in Parliament due to a lack of adequate public engagement.

5.

The SAHRC also notes that a lack of public participation has hindered the realisation of other human rights. Recently, the Commission conducted a nationwide campaign on the rights of access to water and sanitation which included public hearings in all nine provinces of South Africa. At these hearings, community members raised concerns about the lack of engagement they had had with local government officials with regards to their access to water and sanitation services. In the report which emanated out of this campaign, the

SAHRC made recommendations to improve the levels of government’s engagement with local communities and opportunities for community members to participate in planning and monitoring the implementation of local policies.

14

The right to vote

The right to vote is central to the right to participate in public affairs in a democratic state.

However, under the apartheid regime, the right to vote was only reserved for certain race groups or specific categories of persons. Thus the majority of South Africa’s were deprived of this right. Post 1994, all South African citizens over the age of 18, who are registered

12

http://www.parliament.gov.za/content/ncop_brochure.pdf.

13

See, for example, Nkosikhulule Nyembezi and Sam Waterhouse ‘ Open Parliament to the People’ (03 August

2012) which quotes from the National Planning Commission’s vision for 2013: ’In its vision for 2030, the national planning commission raised "serious concerns about whether Parliament is currently fulfilling its role adequately in the building of a capable, accountable and responsive state"

– one that can address poverty, inequality and provide pu blic services’, available at http://mg.co.za/article/2012-08-02-open-parliament-to-the-people.

14

See SAHRC

Report on the Right to Access Water and Sanitation

, available at www.sahrc.org.za.

SAHRC Submission to OHCHR on the Right to Participate in Public Affairs, Feb 2015 Page 5

voters, are allowed to vote in elections, as enshrined in Section 19 (quoted above).

15

Currently, over 80% of the voting population of South Africa are registered to vote.

16

Two constitutional court judgments have further interpreted this right and the categories of persons who were eligible to vote in South Africa. In the case

Minister of Home Affairs v

National Institute for Crime Prevention and the Re-Integration of Offenders (NICRO) and

Others

17 the Constitutional Court assessed whether South Africa’s Electoral Act

18

restricted prisoners constitutional right to vote. Under the Act, prisoners were deprived of the right to register and vote, if they were serving a sentence of imprisonment without the option of a fine. The Court held that the deprivation of this right was inconsistent with the Constitution.

19

In addition, in the matter of

Richter v The Minister for Home Affairs & Others

,

20

the

Constitutional Court again assessed sections of the Electoral Act which prevented categories of South African citizens, who are abroad, from voting in national elections. In its judgement, the Court confirmed the High Court’s ruling that the provisions were unconstitutional as it infringed on the right to equality and the right to vote. It further recognised that the right to vote, as well as its exercise, has both constitutional importance and symbolic value and that, "each vote strengthens and invigorates our democracy. In marking their ballots, citizens remind those elected that their position is based on the will of the people and will remain subject to that will".

21

In response to these Constitutional Court judgments on the right to vote, an amended

Electoral Act was promulgated in November 2013, in line with the constitution.

22

5.1 Independent Electoral Commission

The Independent Electoral Commission (IEC) is a permanent body established by the

Constitution to promote and safeguard democracy in South Africa, and to ensure that elections in South Africa are free and fair.

23

It is a publicly funded body

24

and while it is

15

Voters are registered to a particular voting district and in local elections may only vote at the voting station in that district. For national and provincial elections voters should still vote where they are registered, but in some cases are allowed to vote outside the voting district if they have proof that they are registered. See, http://www.etu.org.za/toolbox/docs/govern/elections.html#voters

16

http://www.timeslive.co.za/politics/2014/02/11/more-than-25-million-south-africans-registered-to-vote.

17

CCT 03/04,

18

At that time it was Act 73 of 1998, amended by the Electoral Laws Amendment Act 34 of 2003. (The Act was again amended in 2013. See footnote 8)

19

http://www.saflii.org/za/cases/ZACC/2004/10media.pdf

20

CCT03/09, CCT 09/09

21

Richter case, Para 53

22

Electoral Amendment Act 18 of 2013

23

The Independent Electoral Commission is established in terms of Section 190 of the Constitution.

SAHRC Submission to OHCHR on the Right to Participate in Public Affairs, Feb 2015 Page 6

accountable to Parliament, it is independent of government. In terms of the Electoral

Commission Act of 1996, the IEC has to compile and maintain the voters' roll and it is responsible for counting, verifying and declaring the results of an election.

25

6. Women

Currently, women constitute over half of So uth Africa’s voting population.

26

On a political level, women occupy 166 seats out of 400 in the South African Parliament,

27

with both the

Speaker of Parliament and the Chairperson of the National Council of Provinces being female.

28

South Africa currently ranks third in terms of representation of women in parliament.

29

However, there are several challenges which prevent women from playing a full and meaningful role in public participation activities, particularly at the rural level.

30

An increase in the participation of women in law and policy making can by extension lead to an improvement in access to basic services such as housing, education and welfare, and to the eradication of gender inequality.

31

In order to further the realization of gender equality in

South Africa, and in compliance with South Africa’s obligations under the Convention on the

Elimination of All forms of Discrimination Against Women (CEDAW)

32

, the Women’s

Empowerment and Gender Equality Bill was introduced in Parliament in 2013. The original draft of this Bill included a clause which provided that political parties must progressively realise 50% representation of women.

33

Interestingly, this clause was later deleted during

Parliamentary deliberations on the Bill as it was considered to be potentially unconstitutional.

Again, the Bill has subsequently been withdrawn to allow for wider public consultation.

34

24

The Independent Electoral Commission is funded by National Treasury.

25

See, http://www.southafrica.info/about/democracy/iec.htm#.VOHwDiyGOz4#ixzz3RukWHmoC and http://www.elections.org.za/content/about-us/what-we-do/

26

Study by Heinrich Boell Foundation. See, http://za.boell.org/2014/05/05/voting-change-women-and-genderequality-2014-south-african-elections. they note, however, that despite this substantive gender equality still remains a national issue

27

As of December 2014. See, http://www.ipu.org/wmn-e/classif.htm#1

28

Speaker of South African Parliament 2015, Ms Baleka Mbete, and Chairperson of the NCOP, Ms Thandi

Modise.

29

http://www.parliament.gov.za/content/Women%20and%20Parliament%20English~1.pdf

30

Examples include, poverty, access to basic services such as education, water, welfare etc.

31

http://www.parliament.gov.za/content/Women%20and%20Parliament%20English~1.pdf

32

South Africa ratified CEDAW in 1995.

33

Clause 7(2)

34

http://www.bdlive.co.za/business/2014/07/10/withdrawal-of-gender-equity-bill-welcomed

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7. Linguistic Minorities and Indigenous Persons

South Africa has eleven official languages, yet many more languages are spoken within various cultural communities across the country. As a result, persons belonging to South

Africa’s diverse linguistic and cultural minorities often face discrimination in participating equally in public affairs. The lack of adequate information on government activities in all languages have often resulted in persons being shut out from government engagements and their needs unrepresented. In response, the IEC has conducted programmes with various success levels aimed at providing information in all South Africa’s official languages about the voting process and registration.

35

The Commission has noted from various media reports that tensions can exist between ethnic groups on the basis that local government allegedly discriminates against minority groups. For example, in the Malamulele

36

area of the Limpopo province, residents have claimed that the local municipality has been channelling services to Tshivenda-speaking areas only, rather than to their own area which is largely Xitsonga speaking. This has resulted in the complete absence of services for over 6 weeks, including water and sanitation, and the Xitsonga speaking people demanding their own municipality.

37

The

Commission has issued a press statement on this issue calling for the respect of other rights during times of protest, and aprticuarly the rights of children to their education.

38

Similarly, indigenous persons, such as the Khoisan, have been historically underrepresented in Parliament. In the recent national elections of 2014 the Khoisan people entered their own political party for the first time

– the Khoisan Kingdom and All People party. The party did not, however, win any seats in Parliament.

The SAHRC’s has a designated Commissioner, Dr. Danny Titus,

39

dealing with matters of civil and political rights as well as indigenous rights. During October 2014, the

Commissioner conducted public hearings in Upington in the Northern Cape province of

South Africa. The hearings were designed to establish a platform for indigenous communities to raise their human rights concerns directly with the Commission. The SAHRC noted that many of the complaints concerned the lack of constitutional and political representation of indigenous communities in South Africa.

35

https://pmg.org.za/committee-meeting/16176/.

36

This is a small town in the province of Limpopo

37

http://www.bdlive.co.za/national/2015/01/19/malamulele-protests-will-escalate-if-demands-not-met-sayorganisers.

38

http://www.sahrc.org.za/home/index.php?ipkArticleID=319.

39

Commissioner Danny Titus is also a member of the UN Expert Mechanism on the Rights of Indigenous

Persons.

SAHRC Submission to OHCHR on the Right to Participate in Public Affairs, Feb 2015 Page 8

8. Conclusion

The Commission affirms its support of Resolution 27/24 and reiterates the fundamental importance of the right to participation in political and public affairs as one of the critical rights for democracy. It wishes the OHCHR well in the presentation of the report to the

Human Rights Council at its 30 th

session.

SAHRC Submission to OHCHR on the Right to Participate in Public Affairs, Feb 2015 Page 9

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