Rights alone cannot deliver transformation

CCHAPTER nine of the Constitution establishes numerous institutions that are tasked with the very important task of supporting democracy and upholding, promoting, and protecting the principles that form its bedrock.

Some of the most well-known Chapter 9 institutions include the South African Human Rights Commission, the Office of the Public Protector, Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities, and the Commission for Gender Equality.

All the Chapter nine institutions, including those not mentioned here, play an essential role in ensuring that the Constitution guides all South Africans in all their interactions.

However, they all have significantly different roles to play to ensure constitutional compliance.

The SAHRC, which I serve as Chairperson, has the broadest constitutional mandate of all. Section 184, of the Constitution, which sets out the Commission’s mandate, clearly tasks the SAHRC with: protecting and promoting respect for the human rights set out in the Bill of Rights, monitoring of the observance of rights, investigating allegations of human rights violations, researching and educating on human rights.

We know, at the Human Rights Commission, that rights in and of themselves will not deliver the promises of transformation. The Constitutional Court, in its ruling in the historic Grootboom judgment, emphasised the crucial role that advocacy and education play in translating the rights contained in our Constitution into tangible benefits for those who need it most.

For rights to be meaningful, people need to know their rights, understand how rights intersect with their lived realities, and feel suitably confident to assert their rights.

The Constitution tasks the Commission with delivering this constitutional mandate across all strata of South African society.

It is a gargantuan task for 214 individuals across nine provinces to serve 55-million South Africans. However, it is not impossible, as my brief tenure at the helm of the Commission has proven in the work we do.

Despite the significant achievements over the past 23 years of democracy, deep inequalities, and unfair discrimination, especially based on race, remain serious concerns in South Africa.

This notion is supported by the statistical data gathered from the Commission’s work, which indicates that the majority of complaints received by the SAHRC relate to racial discrimination.

The Commission’s caseload is increasingly incrementally each year. In the 2015/6 financial year the Commission’s total investigation caseload was 9 238, an increase by 926 complaints on the year previously. These cases involve violations of all 27 human rights contained in our Bill of Rights, barring one: the prohibition on slavery and forced labour.

We are currently litigating in 34 matters before the Equality Courts, relating most often to race based discrimination. Most of these cases involve the use of racial epithets and other derogatory comments with racial undertones such as baboon or monkey.

These incidences of racial discrimination take place across spectrums of society including, schools, universities, businesses and the workplace.

During March this year, as the country celebrated Human Rights month, the Commission’s celebrated two major victories. The first involved a three-year-old child with a life threatening condition who was refused treatment in October last year. The SAHRC’s intervened and the child had his surgery on 13 March.

Another achievement in Human Rights Month relates to the rights of a transgendered secondary school learner. Between 2013 and 2014, she was the victim of on-going discrimination because of her gender identity.

The harassment was so severe that it had a detrimental impact on her education and she failed matric at the end of 2014. The SAHRC brought the matter to the Seshego Equality Court on her behalf. On the 10th March this year, in a major rights victory the court ruled in her favour.

The first National Investigative Hearing convened by the SAHRC since I took office in January 2016, was directed at assessing the phenomenon of racism on the social media.

From December 2015 a series of incident arising on social media and reported to the Commission indicated that it was becoming increasingly urgent to convene a national hearing that explored the broader context within which racism finds expression on social media.

A hearing also provided an

Despite the establishment of Constitution of the Republic of South Africa in 1996 and the plethora anti-racisms laws, racism remains endemic in South Africa. opportunity for various entities spanning civil society, government departments, educational institutions, academics, and owners of social media platforms, to discuss strategic ways of combating online hate in line with current legislation.

Simply attempting to legislate the problem is not sustainable in addressing what is clearly a societal and systemic concern.

The SAHRC receives a daily stream of screen shots of offensive social media posts that reveal the emergence of a worrying trend in need of urgent intervention and leadership to confront discrimination and online hate that impugn dignity and violate the right to equality.

The Commission thus convened all relevant stakeholders to share and discuss various approaches that could coalesce into a strategic national best practice on addressing online hate.

The Commission’s report on this matter, containing recommendations and findings, will provide a comprehensive approach to dealing with an issue that has a bearing on numerous rights such as freedom of expression, hate speech, privacy, dignity and equality.

Shortly after wrapping up the hearing racism and social media, sporadic incidents of xenophobic violence across Johannesburg and Tshwane led to numerous homes and businesses being destroyed.

Violent confrontations between locals and foreign nationals led to widespread injuries and trauma. These unfortunate incidents resonate with our statistics: inequality based on ethnic and social origin is the third highest right most violated with respect to equality, after race and disability.

The Commission intervened by writing to express its concern to the Premier of Gauteng Province, the Gauteng MEC of Community Safety, the Gauteng Provincial Police Commissioner, and the Executive Mayors of the cities of Johannesburg and Tshwane.

The Commission urged the urgent implementation of measures to guarantee the safety of all residents, local and foreign nationals alike.

The xenophobic undertones of the march against foreign nationals that accompanied the violence, raised serious concerns for the Commission. Subsequent to the events that unfolded in Tshwane, I met with the Acting National Commissioner of Police, Kgomotso Phahlane, to reach an agreement between the SAHRC and the South African Police Service on how community concerns and the safety of foreign nationals need to be addressed.

The Commission has been very active in its efforts to protect socio-economic rights, most recently in the much-publicised constitutional dilemma caused by the agreement between the South African Social Security Agency (SASSA) and Cash Paymaster Services (CPS).

With the looming threat of 17-million social grants not being paid on the 1st April 2017, the Commission requested an urgent meeting with the Minister of Social Development, Honourable Bathabile Dlamini. The Commission stressed the fact that the impending threat to the livelihoods of millions would not only have a devastating impact on some of the most vulnerable members of our society, but that social security is a human right guaranteed by our Constitution.

Much of the Commission’s work happens away from the glare of the media, in communities situated in far-flung, often forgotten, rural areas of South Africa.

Promoting, protecting, and monitoring human rights happens daily in all nine provincial offices and at our head office. Every day individuals and groups from places most of us in cities have never heard of, walk into our offices to lodge complaints of human rights abuses, or call, email and fax us with queries relating to circumstances on which they need human-rights based advice or intervention.

Whether it is the protection of the rights of lesbian, gay, bi-sexual and transgender individuals and other gender non-conforming persons, the essential socio-economic rights of the most vulnerable, taking steps to quell incidents of xenophobia, or addressing digital racism and hate, the SAHRC continues to advocate, educate and litigate on human rights to secure rights, restore dignity, and transform society.