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COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION CONSIDERS REPORT OF SOUTH AFRICA
07 August 2006
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Committee on the Elimination
of Racial Discrimination
7 August 2006
The Committee on the Elimination of Racial Discrimination has considered the initial to third periodic reports of South Africa on its implementation of the provisions of the International Convention on the Elimination of all Forms of Racial Discrimination.
Presenting the report, Brigitte Mabandla, Minister of Justice, said that in 1990 a memorandum of understanding – the Grootte Schuur Minute – had outlined the basic principles for the building of a democratic, non-racial and non-sexist society. The South African Constitution therefore required the State to act positively to progressively realize the socio-economic rights. The Government had developed policies that sought to redress a legacy of apartheid, and to act positively to provide needs that they had identified as housing, water, sanitation, electricity, as well as schools, medical clinics and hospitals. In the legislative sphere, the Promotion of Equality and Prevention of Unfair Discrimination Act had been passed to help the new South African Government reach its goal of achieving substantive equality that had been denied South Africans by the premise of apartheid in the past.
In preliminary remarks, Raghavan Vasudevan Pillai, the Committee Expert who served as country Rapporteur for South Africa, highlighted that no nation had had to suffer such an inhuman legacy of institutionalized discrimination, and its people the cruel denial of basic human dignity and their basic rights as human beings. The tasks before the country were huge and challenging. Challenging, because attitudes were slow to change, and also because of the resources needed to address them. The Committee encouraged the State to pursue the many steps it had taken and to look beyond, in particular on the basis of the discussions that they had had. He welcomed the statement that indicated South Africa was contemplating measures to criminalize racism.
Other Committee Experts raised questions and asked for further information on subjects pertaining to, among other things, any laws that still contained discriminatory provisions, in particular inheritance laws; human rights education and training for the police, specifically with regard to racial discrimination and the treatment of refugees; the situation of asylum-seekers; the high rate of violence against women, in particular rape; measures taken to address victims of HIV/AIDS; discrimination against foreigners or refugees by service providers; and access of marginalized groups to land.
Several Experts expressed their great emotion at being able to welcome the delegation from a new, democratic South Africa to present its first, historic report before the Committee, and congratulated the delegation for the progress South Africa had made since throwing off the institutionalized racism of apartheid.
The South African delegation also included Glaudine J. Mtshali, Permanent Representative of South Africa to the United Nations Office at Geneva, as well as representatives from the Department of Justice, the Department of Health and the Department of Home Affairs, as well as other representatives from the Permanent Mission of South Africa to the United Nations Office at Geneva.
The Committee will present its written observations and recommendations on the initial to third periodic reports of South Africa, which were presented in one document, at the end of its session, which concludes on 10 March.
When the Committee reconvenes at 3 p.m., in room XII, it is scheduled to take up the initial report of Oman (CERD/C/OMN/1).
Report of South Africa
The initial to third periodic reports of South Africa, submitted in one document (CERD/C/461/Add.3), notes that when the first truly democratically elected non-racial government took office in 1994, many of the laws based on white supremacy and black inferiority had been removed from the statute book. However, gross racially defined economic and social inequalities remains part of South African life with the major part of the land of the country remaining in the hands of the Whites. Control of the economy and income distribution, access to jobs and other life opportunities are still racially defined. The cultural dominance of the White minority finds expression in the value system that drives the media in all its forms. Many parts of the social landscape have been affected by apartheid-engineered mind-sets.
South Africa’s policy framework regarding the elimination of racial discrimination is articulated in the country’s new Constitution and a number of statutes to give effect to the Constitution, including the Promotion of Equality and Prevention of Unfair Discrimination Act (2000), the Employment Equity Act (1998) and the Preferential Procurement Policy Framework Act (2000).
The implementation of positive measures to advance Black people, women and disabled persons in the public service, saw an increase of black people in management, to 50 per cent and women to 33 per cent with black women lagging behind their white counterparts. The gender question is very critical because the apartheid system specifically utilized the intersection between race and gender as part of its strategy to subjugate black people. The migrant labour system, pass laws and slave wages are essential elements of this strategy. The eradication of the social and psychological consequences thereof require the prioritization of the intersection between race and gender within all strategies that seek to achieve the objectives of this Convention in the context of South Africa. The Promotion of Equality Act and Employment Equity Act are some of the examples that demonstrate South Africa’s serious consideration of the intersection between race and gender.
Presentation of Report
BRIGITTE MABANDLA, Minister of Justice, said that the South African delegation was here to share its experience from the first decade of its democracy and to highlight its successes and in particular the challenges it faced in meeting its goal of creating a non-racial, non-sexist and democratic society. South Africa’s greatest challenge was that of meeting its goals, as it was a nation in transition. The report covered the period from 1999 to 2001. To facilitate the dialogue, an additional report covering 2002 to 2005 had also been submitted.
South Africans had been struggling for the dignity and equality of all human beings for decades. In that connection, Ms. Mabandla thanked all of those who had stood with them in realizing their quest for freedom.
In 1990 a memorandum of understanding – the Grootte Schuur Minute – for a negotiated settlement was signed, which outlined the basic principles for the building of a democratic, non-racial and non-sexist society. That was the basis on which South Africa’s Constitution was founded. The 1994 Constitution was thus premised on the upholding of all human rights in the country and on good governance. Accordingly, South Africa had constitutionalized a full panoply of social, economic, political and cultural rights in its Bill of Rights. That Constitution had been tested and, indeed, the South African Bill of Rights was justiciable. The Supreme Court was producing a body of jurisprudence based on the Constitution.
The South African Constitution required the State to act positively to progressively realize the socio-economic rights of its people and thus the State was expected to provide the basic needs of its people, Ms. Mabandla observed. It was in that context that the Government had developed policies that sought to redress a legacy of apartheid, to act positively to provide needs that they had identified as housing, water, sanitation, electricity and other infrastructure necessary for improving the quality of life of people, such as schools, medical clinics and hospitals.
Ms. Mabandla noted that the system of social services in South Africa was an indication of the Government’s efforts to provide services for the people. The Government provided social grants for the indigent, and statistics indicated that they had so far covered 10 million people. Whereas in the past the majority of the people did not have water, in the 12 years of its democracy, over 10 million people had gained access to clean water and over 2 million housing subsidies had been granted. There was a programme to electrify the whole country, and the Government hoped that by 2012 at least two-thirds of the country would be covered by electrical infrastructure.
Ms. Mabandla identified unemployment and developing the necessary skills to promote economic growth in South Africa as the greatest challenge facing the country. South Africa had embarked on the Accelerated and Shared Growth Initiative, in which the Government, along with the private sector, worked to create jobs. The Government was confident that working with tertiary institutions, unions, and specialized non-governmental organizations it would manage to create the necessary jobs by 2012.
Much of the apartheid legislation had been repealed and the Government had promulgated appropriate legislation to facilitate the transformation that would enable it to improve the livelihoods of its people and the quality of their lives. To give a sense of the legislation that had been brought into force since 1994 in this regard, Ms. Mabandla wished to highlight, first, the Public Finance Management Act. There was also the Restitution of Land Rights Act, the Labour Relations Act, and the South African Schools Act. Also in the context of promoting fair treatment of workers, was the Employment Equity Act. As an indication of continuously improving the skills of the population, the Skills Development Act was passed. The Promotion of Equality and Prevention of Unfair Discrimination Act was passed to help the new South African Government reach its goal of achieving substantive equality that had been denied South Africans by the premise of apartheid in the past.
Ms. Mabandla also had to talk about the challenges that the Government was seized with, including violence against women and children. As Minister of Justice, she served on the cluster on security, safety and justice, which was comprised of the Ministry of Social Welfare, the Ministry of Safety and Security, the Ministry of Home Affairs, the Ministry of Correctional Services, and the Ministry of Justice. That cluster had recently been reviewing a strategy for dealing with the issue of violence against women and children.
The Government has also initiated dialogue with minority indigenous communities such as the Khoisan, regarding their rightful place in society, including the preservation and promotion of their language and culture. A Cultural Industries Programme had been established, and South Africa assisted in the promotion of their near-extinct languages. Ms. Mabandla said that the Government also was looking into ensuring their access to land long-denied.
Oral Questions Raised by the Rapporteur and Experts
RAGHAVAN VASUDEVAN PILLAI, the Committee Expert serving as Country Rapporteur for South Africa, noted that the initial report of South Africa was of special importance. The international community owed a great deal to the heroic struggle of the people of South Africa in understanding the pervasive and dehumanizing effects of racism and racial discrimination. That struggle had greatly influenced the international community in articulating its commitment to equality and non-discrimination, as evidenced in its international instruments, including the International Convention on the Elimination of All Forms of Racial Discrimination.
Mr. Pillai wished to highlight that his comments on South Africa’s report were more complimentary than critical for two reasons. First, unlike State parties that claimed their populations were homogenous or that they did not suffer from racial discrimination, the current report was very frank and forthright on the prevalence of problems, as well as difficulties that South Africa experienced in dealing with the multidimensional fallout of the policy of apartheid. Secondly, no other country had had such a damaging impact of a powerful, in fact ruthless, institutional government mechanism for pursuing and protecting the practice of racial discrimination and no other country had put into motion such an array of initiatives to address the inhuman legacies of institutionalized discrimination.
The report had defined the greatest challenges for South Africa as having to do with resources available and the obscene racial disparities in resources that still existed, as well as the inherited public service systems and the inherited racist attitudes. What was really noteworthy about that, Mr. Pillai said, was that the reference to the legacy and the constraints they laboured under were not intended to serve as excuses for South Africa’s non-fulfilment of their obligations under the Covenant.
Affirmative action measures were incorporated in the Constitution and further legislation, including the Promotion of Equality Act, which prioritized victims of discrimination on the basis of race, gender or ethnicity. Mr. Pillai believed that other countries could benefit from Africa’s experience in this area.
Mr. Pillai did have some questions, however. He wished to know if the provisions of the Convention could be directly invoked in domestic law; whether the State party had benchmarks that enabled the identification of communities that would benefit from affirmative action; whether the Promotion of Equality and the Employment Equity Act envisaged a selective approach to groups or communities with varying levels of socio-economic development and political participation; and whether the State party had measures to ensure that the legal and policy frameworks for affirmative action did not widen the gaps between disadvantaged communities or ethnicities.
Regarding the status of indigenous people, Mr. Pillai noted that the South African Human Rights Commissioner was undertaking an investigation into alleged human rights violations in the Khosani community. He would like to know what the State party was doing to ensure that indigenous people were full and equal partners in public life.
Noting the high level of clandestine immigration, which the Office of the United Nations High Commissioner for Refugees had estimated to be 500,000, but for which others had made more alarming estimates of up to 2 million or more, as well as the numerous refugees in the country, Mr. Pillai said that Committee would appreciate greater information on the Roll Back Xenophobia campaign that the Government had launched and what was being done to speed up applications for asylum.
Other Committee Experts raised questions and asked for further information on subjects pertaining to, among other things, any laws that still contained discriminatory provisions, in particular inheritance laws; measures to address the remnants of racist attitudes in the judiciary, in terms of hiring, training and monitoring of judges; human rights education and training for the police, specifically with regard to racial discrimination and the treatment of refugees; the situation of asylum-seekers; the high rate of violence against women, in particular rape; measures taken to address victims of HIV/AIDS; discrimination against foreigners or refugees by service providers; and access of marginalized groups to land.
An expert was concerned about how South Africa was going to re-establish its former ethnic differences and cultural specificities, which had been suppressed in the past, without plunging into cultural wars. Similarly, she wondered how a balance was going to be found between the white and black communities in South Africa, without falling into a situation of reverse racism.
Several Experts expressed their great emotion at being able to welcome the delegation from a new, democratic South Africa to present its first report before the Committee on the Elimination of Racial Discrimination, and congratulated the delegation for the progress South Africa had made since throwing off the institutionalised racism of apartheid.
Response by Delegation to Oral Questions
Ms. Mabandla said that, within the South African discourse for social justice, dismantling the systemic apartheid legacy was paramount, and it was that thinking that formed the substance of the Constitution – in particular the preamble and the Bill of Rights.
Ms. Mabandla wished to emphasize that equal treatment for all was an objective of the Government. While the Government did not treat people differently on the basis of ethnicity, particular disadvantages were suffered by some of its people as a result of prejudice – such as was the case with the Khoisan. The Government would apply special measures to redress apartheid exclusions and neglect. An example was that multilingualism was government policy, and that special measures were taken by the Government to support the revival of languages that were facing extinction. There were now schools and a radio station in the Northern Cape catering for Khoisan and Nama people, and Government funds promoted their crafts. Among the first successful land restitution claims had been that of the Khoisan.
During the days of apartheid, ethnic differentiation and tribalism had been promoted as a tool to divide and turn people against each other, Ms. Mabandla observed. For that reason, the current Government sought not to differentiate its people but, rather, to categorize its people in the broadest terms – in black and white. Hopefully in time the South Africa Government would desist from differentiating the people of its country, even racially.
There had been disturbing reports of xenophobia, mainly in urban areas, Ms. Mablanda admitted. Competition for employment and resources was one of the causes. It was important to recognize that South Africa had been a pariah during the years of apartheid, and South Africans had never had the kind of contact with their fellow Africans that they now had. There been instances of South Africans beating up and harassing non-South Africans over the issue of State-sponsored housing. The Government recognized the need to promote human rights education. The South African Human Rights Commission was therefore leading the Roll Back Xenophobia Campaign in partnership with government departments and non-governmental organizations (NGOs).
Continuing to respond to questions, the delegation, turning to the question of HIV/AIDS, said that South Africa had the most comprehensive programme to address HIV/AIDS in the world. In 1996 a partnership for AIDS programme was initiated to bring together a wide number of groups together to fight AIDS, and a Cabinet Committee for AIDS had been established. As part of the comprehensive plan for the identification, treatment and prevention of HIV/AIDS, there were a number of complementary programmes, including a healthy lifestyle campaign, a strong condom distribution programme, a programme focusing on sexually transmitted diseases, and one on mother-to-child transmission of HIV/AIDS.
Turning to the situation of refugees, the delegation said that the Refugee Act of 1998 and the Immigration Act of 2002 regulated applications by asylum-seeking refugees and others. There were no refugee camps in South Africa. As soon as they were granted refugee status, there were no bars for the full integration of refugees directly into South African society. They could work and live among other South Africans.
The delegation noted that a project had been started last year to deal with the large backlog in cases of asylum-seekers by 2007. There were currently 100,000 such cases. Unfortunately, the truth was that the asylum mechanism was being abused. Those who applied for asylum were able to work and study while their cases were pending. To ease the tension created by that situation, the Government had established a counter xenophobia unit and immigration officials were receiving training in human rights concerns relating to dealing with refugees.
The delegation said that the Convention could not be directly invoked before the domestic courts. The Constitution provided that an international agreement was only binding after it had been approved by a resolution both in the National Assembly and the National Council of Provinces. It also had to be enacted into law by national legislation. In that regard, the Government had passed the Promotion of Equality and the Prevention of Unfair Discrimination Act (2000), which could be considered a legislative measure to implement the Convention; however that provided only for civil remedies. There had been moves to develop legislation that criminalized racism.
Further Oral Questions Posed by Experts
Experts asked further questions on various topics, including the use of fair discrimination; the rights of indigenous peoples to land and mineral rights; the need for indigenous communities to be recognized Constitutionally; and information on court decisions on racial discrimination allegations and the prosecution thereof.
Replies by the Delegation
Regarding the term “fair discrimination”, that was a construct of the Constitutional Court. The delegation recalled that the Grootte Schuur Minute provided for a non-racist, non-sexist society. That meant that the Government had had to address the question systemically, for example, by providing the necessary infrastructure to provide for the life of the people who had been denied opportunities. It meant that they had to bring in those who had been left outside. She stressed that their national programme was indeed about the fundamental transformation of South African society.
The delegation acknowledged that there was now beginning to be criticism of affirmative action. That was owing to the fact that there was now beginning to be a trickle of blacks into the middle class. That was only to be expected. Fair discrimination was discrimination. She preferred, however, to talk of special measures. The State policy was that there should be special measures to bring in those who had been out.
Further Remarks by Experts
Several Experts noted that the terms “fair” and “discrimination” did not sit easily together under the Convention. Different treatment was acceptable, or special measures, as the delegation had formulated it. The concept itself, as articulated, especially, by the Constitutional Court, was useful, but the terminology was not. This was an issue that had broader connotations for the interpretation of the Convention, in particular, and for international law in general.
Statement by the South African Human Rights Commission
ZONKE MAJODINA, Deputy Chairperson of the South African Human Rights Commission, said that the Government had approached the Human Rights Commission to comment on the Government’s implementation of the International Convention on the Elimination of all Forms of Racial Discrimination. The Commission commended the Government for the numerous ambitious mechanisms and the comprehensive policy it had put in place to combat racial discrimination. The country had come a long way from apartheid to one where all people had equal rights. She agreed with the delegation’s formulation that the main challenge was the legacy of de facto racism that still existed.
In conclusion, Ms. Majodina said that one area that needed to be addressed was that of monitoring mechanisms to ensure the effectiveness and sustainability of the Government’s policies and programmes. In future reports, the Commission expected to hear about measures the Government had taken to follow-up, for example, to the Durban World Conference against Racism and Racial Discrimination.
Preliminary Remarks
RAGHAVAN VASUDEVAN PILLAI, the Committee Expert who served as Country Rapporteur for South Africa, thanked the delegation for the report and for the detailed answers to questions they had provided. He was particularly heartened by the concluding statement of the delegation that there would be more comprehensive reports in the future, as well as greater participation of the South African national human rights institutions in its preparation.
Noting the emotional tinge that had been in the voices of many of his colleagues in addressing the delegation, Mr. Pillai highlighted once again that no nation had had to suffer such an inhuman legacy of institutionalized discrimination, and its people the cruel denial of basic human dignity and their basic rights as human beings. The tasks before the country were huge and challenging. Challenging, because attitudes were slow to change, and also because of the resources needed to address them. The report amply recorded those.
Mr. Pillai said that the Committee had appreciated the report of South Africa and wished it very well. It encouraged the State to pursue the many steps it had taken and to look beyond, in particular on the basis of the discussions that they had had.
He wished to highlight some of the written answers provided this morning to oral questions posed by Experts at the last meeting. Regarding the internalization of the provisions of the Convention, he welcomed the statement that indicated South Africa was contemplating measures to criminalize racism. Concerning the courts, he welcomed the statement that further details on discrimination cases would be forthcoming.
* *** *
For use of the information media; not an official record
of Racial Discrimination
7 August 2006
The Committee on the Elimination of Racial Discrimination has considered the initial to third periodic reports of South Africa on its implementation of the provisions of the International Convention on the Elimination of all Forms of Racial Discrimination.
Presenting the report, Brigitte Mabandla, Minister of Justice, said that in 1990 a memorandum of understanding – the Grootte Schuur Minute – had outlined the basic principles for the building of a democratic, non-racial and non-sexist society. The South African Constitution therefore required the State to act positively to progressively realize the socio-economic rights. The Government had developed policies that sought to redress a legacy of apartheid, and to act positively to provide needs that they had identified as housing, water, sanitation, electricity, as well as schools, medical clinics and hospitals. In the legislative sphere, the Promotion of Equality and Prevention of Unfair Discrimination Act had been passed to help the new South African Government reach its goal of achieving substantive equality that had been denied South Africans by the premise of apartheid in the past.
In preliminary remarks, Raghavan Vasudevan Pillai, the Committee Expert who served as country Rapporteur for South Africa, highlighted that no nation had had to suffer such an inhuman legacy of institutionalized discrimination, and its people the cruel denial of basic human dignity and their basic rights as human beings. The tasks before the country were huge and challenging. Challenging, because attitudes were slow to change, and also because of the resources needed to address them. The Committee encouraged the State to pursue the many steps it had taken and to look beyond, in particular on the basis of the discussions that they had had. He welcomed the statement that indicated South Africa was contemplating measures to criminalize racism.
Other Committee Experts raised questions and asked for further information on subjects pertaining to, among other things, any laws that still contained discriminatory provisions, in particular inheritance laws; human rights education and training for the police, specifically with regard to racial discrimination and the treatment of refugees; the situation of asylum-seekers; the high rate of violence against women, in particular rape; measures taken to address victims of HIV/AIDS; discrimination against foreigners or refugees by service providers; and access of marginalized groups to land.
Several Experts expressed their great emotion at being able to welcome the delegation from a new, democratic South Africa to present its first, historic report before the Committee, and congratulated the delegation for the progress South Africa had made since throwing off the institutionalized racism of apartheid.
The South African delegation also included Glaudine J. Mtshali, Permanent Representative of South Africa to the United Nations Office at Geneva, as well as representatives from the Department of Justice, the Department of Health and the Department of Home Affairs, as well as other representatives from the Permanent Mission of South Africa to the United Nations Office at Geneva.
The Committee will present its written observations and recommendations on the initial to third periodic reports of South Africa, which were presented in one document, at the end of its session, which concludes on 10 March.
When the Committee reconvenes at 3 p.m., in room XII, it is scheduled to take up the initial report of Oman (CERD/C/OMN/1).
Report of South Africa
The initial to third periodic reports of South Africa, submitted in one document (CERD/C/461/Add.3), notes that when the first truly democratically elected non-racial government took office in 1994, many of the laws based on white supremacy and black inferiority had been removed from the statute book. However, gross racially defined economic and social inequalities remains part of South African life with the major part of the land of the country remaining in the hands of the Whites. Control of the economy and income distribution, access to jobs and other life opportunities are still racially defined. The cultural dominance of the White minority finds expression in the value system that drives the media in all its forms. Many parts of the social landscape have been affected by apartheid-engineered mind-sets.
South Africa’s policy framework regarding the elimination of racial discrimination is articulated in the country’s new Constitution and a number of statutes to give effect to the Constitution, including the Promotion of Equality and Prevention of Unfair Discrimination Act (2000), the Employment Equity Act (1998) and the Preferential Procurement Policy Framework Act (2000).
The implementation of positive measures to advance Black people, women and disabled persons in the public service, saw an increase of black people in management, to 50 per cent and women to 33 per cent with black women lagging behind their white counterparts. The gender question is very critical because the apartheid system specifically utilized the intersection between race and gender as part of its strategy to subjugate black people. The migrant labour system, pass laws and slave wages are essential elements of this strategy. The eradication of the social and psychological consequences thereof require the prioritization of the intersection between race and gender within all strategies that seek to achieve the objectives of this Convention in the context of South Africa. The Promotion of Equality Act and Employment Equity Act are some of the examples that demonstrate South Africa’s serious consideration of the intersection between race and gender.
Presentation of Report
BRIGITTE MABANDLA, Minister of Justice, said that the South African delegation was here to share its experience from the first decade of its democracy and to highlight its successes and in particular the challenges it faced in meeting its goal of creating a non-racial, non-sexist and democratic society. South Africa’s greatest challenge was that of meeting its goals, as it was a nation in transition. The report covered the period from 1999 to 2001. To facilitate the dialogue, an additional report covering 2002 to 2005 had also been submitted.
South Africans had been struggling for the dignity and equality of all human beings for decades. In that connection, Ms. Mabandla thanked all of those who had stood with them in realizing their quest for freedom.
In 1990 a memorandum of understanding – the Grootte Schuur Minute – for a negotiated settlement was signed, which outlined the basic principles for the building of a democratic, non-racial and non-sexist society. That was the basis on which South Africa’s Constitution was founded. The 1994 Constitution was thus premised on the upholding of all human rights in the country and on good governance. Accordingly, South Africa had constitutionalized a full panoply of social, economic, political and cultural rights in its Bill of Rights. That Constitution had been tested and, indeed, the South African Bill of Rights was justiciable. The Supreme Court was producing a body of jurisprudence based on the Constitution.
The South African Constitution required the State to act positively to progressively realize the socio-economic rights of its people and thus the State was expected to provide the basic needs of its people, Ms. Mabandla observed. It was in that context that the Government had developed policies that sought to redress a legacy of apartheid, to act positively to provide needs that they had identified as housing, water, sanitation, electricity and other infrastructure necessary for improving the quality of life of people, such as schools, medical clinics and hospitals.
Ms. Mabandla noted that the system of social services in South Africa was an indication of the Government’s efforts to provide services for the people. The Government provided social grants for the indigent, and statistics indicated that they had so far covered 10 million people. Whereas in the past the majority of the people did not have water, in the 12 years of its democracy, over 10 million people had gained access to clean water and over 2 million housing subsidies had been granted. There was a programme to electrify the whole country, and the Government hoped that by 2012 at least two-thirds of the country would be covered by electrical infrastructure.
Ms. Mabandla identified unemployment and developing the necessary skills to promote economic growth in South Africa as the greatest challenge facing the country. South Africa had embarked on the Accelerated and Shared Growth Initiative, in which the Government, along with the private sector, worked to create jobs. The Government was confident that working with tertiary institutions, unions, and specialized non-governmental organizations it would manage to create the necessary jobs by 2012.
Much of the apartheid legislation had been repealed and the Government had promulgated appropriate legislation to facilitate the transformation that would enable it to improve the livelihoods of its people and the quality of their lives. To give a sense of the legislation that had been brought into force since 1994 in this regard, Ms. Mabandla wished to highlight, first, the Public Finance Management Act. There was also the Restitution of Land Rights Act, the Labour Relations Act, and the South African Schools Act. Also in the context of promoting fair treatment of workers, was the Employment Equity Act. As an indication of continuously improving the skills of the population, the Skills Development Act was passed. The Promotion of Equality and Prevention of Unfair Discrimination Act was passed to help the new South African Government reach its goal of achieving substantive equality that had been denied South Africans by the premise of apartheid in the past.
Ms. Mabandla also had to talk about the challenges that the Government was seized with, including violence against women and children. As Minister of Justice, she served on the cluster on security, safety and justice, which was comprised of the Ministry of Social Welfare, the Ministry of Safety and Security, the Ministry of Home Affairs, the Ministry of Correctional Services, and the Ministry of Justice. That cluster had recently been reviewing a strategy for dealing with the issue of violence against women and children.
The Government has also initiated dialogue with minority indigenous communities such as the Khoisan, regarding their rightful place in society, including the preservation and promotion of their language and culture. A Cultural Industries Programme had been established, and South Africa assisted in the promotion of their near-extinct languages. Ms. Mabandla said that the Government also was looking into ensuring their access to land long-denied.
Oral Questions Raised by the Rapporteur and Experts
RAGHAVAN VASUDEVAN PILLAI, the Committee Expert serving as Country Rapporteur for South Africa, noted that the initial report of South Africa was of special importance. The international community owed a great deal to the heroic struggle of the people of South Africa in understanding the pervasive and dehumanizing effects of racism and racial discrimination. That struggle had greatly influenced the international community in articulating its commitment to equality and non-discrimination, as evidenced in its international instruments, including the International Convention on the Elimination of All Forms of Racial Discrimination.
Mr. Pillai wished to highlight that his comments on South Africa’s report were more complimentary than critical for two reasons. First, unlike State parties that claimed their populations were homogenous or that they did not suffer from racial discrimination, the current report was very frank and forthright on the prevalence of problems, as well as difficulties that South Africa experienced in dealing with the multidimensional fallout of the policy of apartheid. Secondly, no other country had had such a damaging impact of a powerful, in fact ruthless, institutional government mechanism for pursuing and protecting the practice of racial discrimination and no other country had put into motion such an array of initiatives to address the inhuman legacies of institutionalized discrimination.
The report had defined the greatest challenges for South Africa as having to do with resources available and the obscene racial disparities in resources that still existed, as well as the inherited public service systems and the inherited racist attitudes. What was really noteworthy about that, Mr. Pillai said, was that the reference to the legacy and the constraints they laboured under were not intended to serve as excuses for South Africa’s non-fulfilment of their obligations under the Covenant.
Affirmative action measures were incorporated in the Constitution and further legislation, including the Promotion of Equality Act, which prioritized victims of discrimination on the basis of race, gender or ethnicity. Mr. Pillai believed that other countries could benefit from Africa’s experience in this area.
Mr. Pillai did have some questions, however. He wished to know if the provisions of the Convention could be directly invoked in domestic law; whether the State party had benchmarks that enabled the identification of communities that would benefit from affirmative action; whether the Promotion of Equality and the Employment Equity Act envisaged a selective approach to groups or communities with varying levels of socio-economic development and political participation; and whether the State party had measures to ensure that the legal and policy frameworks for affirmative action did not widen the gaps between disadvantaged communities or ethnicities.
Regarding the status of indigenous people, Mr. Pillai noted that the South African Human Rights Commissioner was undertaking an investigation into alleged human rights violations in the Khosani community. He would like to know what the State party was doing to ensure that indigenous people were full and equal partners in public life.
Noting the high level of clandestine immigration, which the Office of the United Nations High Commissioner for Refugees had estimated to be 500,000, but for which others had made more alarming estimates of up to 2 million or more, as well as the numerous refugees in the country, Mr. Pillai said that Committee would appreciate greater information on the Roll Back Xenophobia campaign that the Government had launched and what was being done to speed up applications for asylum.
Other Committee Experts raised questions and asked for further information on subjects pertaining to, among other things, any laws that still contained discriminatory provisions, in particular inheritance laws; measures to address the remnants of racist attitudes in the judiciary, in terms of hiring, training and monitoring of judges; human rights education and training for the police, specifically with regard to racial discrimination and the treatment of refugees; the situation of asylum-seekers; the high rate of violence against women, in particular rape; measures taken to address victims of HIV/AIDS; discrimination against foreigners or refugees by service providers; and access of marginalized groups to land.
An expert was concerned about how South Africa was going to re-establish its former ethnic differences and cultural specificities, which had been suppressed in the past, without plunging into cultural wars. Similarly, she wondered how a balance was going to be found between the white and black communities in South Africa, without falling into a situation of reverse racism.
Several Experts expressed their great emotion at being able to welcome the delegation from a new, democratic South Africa to present its first report before the Committee on the Elimination of Racial Discrimination, and congratulated the delegation for the progress South Africa had made since throwing off the institutionalised racism of apartheid.
Response by Delegation to Oral Questions
Ms. Mabandla said that, within the South African discourse for social justice, dismantling the systemic apartheid legacy was paramount, and it was that thinking that formed the substance of the Constitution – in particular the preamble and the Bill of Rights.
Ms. Mabandla wished to emphasize that equal treatment for all was an objective of the Government. While the Government did not treat people differently on the basis of ethnicity, particular disadvantages were suffered by some of its people as a result of prejudice – such as was the case with the Khoisan. The Government would apply special measures to redress apartheid exclusions and neglect. An example was that multilingualism was government policy, and that special measures were taken by the Government to support the revival of languages that were facing extinction. There were now schools and a radio station in the Northern Cape catering for Khoisan and Nama people, and Government funds promoted their crafts. Among the first successful land restitution claims had been that of the Khoisan.
During the days of apartheid, ethnic differentiation and tribalism had been promoted as a tool to divide and turn people against each other, Ms. Mabandla observed. For that reason, the current Government sought not to differentiate its people but, rather, to categorize its people in the broadest terms – in black and white. Hopefully in time the South Africa Government would desist from differentiating the people of its country, even racially.
There had been disturbing reports of xenophobia, mainly in urban areas, Ms. Mablanda admitted. Competition for employment and resources was one of the causes. It was important to recognize that South Africa had been a pariah during the years of apartheid, and South Africans had never had the kind of contact with their fellow Africans that they now had. There been instances of South Africans beating up and harassing non-South Africans over the issue of State-sponsored housing. The Government recognized the need to promote human rights education. The South African Human Rights Commission was therefore leading the Roll Back Xenophobia Campaign in partnership with government departments and non-governmental organizations (NGOs).
Continuing to respond to questions, the delegation, turning to the question of HIV/AIDS, said that South Africa had the most comprehensive programme to address HIV/AIDS in the world. In 1996 a partnership for AIDS programme was initiated to bring together a wide number of groups together to fight AIDS, and a Cabinet Committee for AIDS had been established. As part of the comprehensive plan for the identification, treatment and prevention of HIV/AIDS, there were a number of complementary programmes, including a healthy lifestyle campaign, a strong condom distribution programme, a programme focusing on sexually transmitted diseases, and one on mother-to-child transmission of HIV/AIDS.
Turning to the situation of refugees, the delegation said that the Refugee Act of 1998 and the Immigration Act of 2002 regulated applications by asylum-seeking refugees and others. There were no refugee camps in South Africa. As soon as they were granted refugee status, there were no bars for the full integration of refugees directly into South African society. They could work and live among other South Africans.
The delegation noted that a project had been started last year to deal with the large backlog in cases of asylum-seekers by 2007. There were currently 100,000 such cases. Unfortunately, the truth was that the asylum mechanism was being abused. Those who applied for asylum were able to work and study while their cases were pending. To ease the tension created by that situation, the Government had established a counter xenophobia unit and immigration officials were receiving training in human rights concerns relating to dealing with refugees.
The delegation said that the Convention could not be directly invoked before the domestic courts. The Constitution provided that an international agreement was only binding after it had been approved by a resolution both in the National Assembly and the National Council of Provinces. It also had to be enacted into law by national legislation. In that regard, the Government had passed the Promotion of Equality and the Prevention of Unfair Discrimination Act (2000), which could be considered a legislative measure to implement the Convention; however that provided only for civil remedies. There had been moves to develop legislation that criminalized racism.
Further Oral Questions Posed by Experts
Experts asked further questions on various topics, including the use of fair discrimination; the rights of indigenous peoples to land and mineral rights; the need for indigenous communities to be recognized Constitutionally; and information on court decisions on racial discrimination allegations and the prosecution thereof.
Replies by the Delegation
Regarding the term “fair discrimination”, that was a construct of the Constitutional Court. The delegation recalled that the Grootte Schuur Minute provided for a non-racist, non-sexist society. That meant that the Government had had to address the question systemically, for example, by providing the necessary infrastructure to provide for the life of the people who had been denied opportunities. It meant that they had to bring in those who had been left outside. She stressed that their national programme was indeed about the fundamental transformation of South African society.
The delegation acknowledged that there was now beginning to be criticism of affirmative action. That was owing to the fact that there was now beginning to be a trickle of blacks into the middle class. That was only to be expected. Fair discrimination was discrimination. She preferred, however, to talk of special measures. The State policy was that there should be special measures to bring in those who had been out.
Further Remarks by Experts
Several Experts noted that the terms “fair” and “discrimination” did not sit easily together under the Convention. Different treatment was acceptable, or special measures, as the delegation had formulated it. The concept itself, as articulated, especially, by the Constitutional Court, was useful, but the terminology was not. This was an issue that had broader connotations for the interpretation of the Convention, in particular, and for international law in general.
Statement by the South African Human Rights Commission
ZONKE MAJODINA, Deputy Chairperson of the South African Human Rights Commission, said that the Government had approached the Human Rights Commission to comment on the Government’s implementation of the International Convention on the Elimination of all Forms of Racial Discrimination. The Commission commended the Government for the numerous ambitious mechanisms and the comprehensive policy it had put in place to combat racial discrimination. The country had come a long way from apartheid to one where all people had equal rights. She agreed with the delegation’s formulation that the main challenge was the legacy of de facto racism that still existed.
In conclusion, Ms. Majodina said that one area that needed to be addressed was that of monitoring mechanisms to ensure the effectiveness and sustainability of the Government’s policies and programmes. In future reports, the Commission expected to hear about measures the Government had taken to follow-up, for example, to the Durban World Conference against Racism and Racial Discrimination.
Preliminary Remarks
RAGHAVAN VASUDEVAN PILLAI, the Committee Expert who served as Country Rapporteur for South Africa, thanked the delegation for the report and for the detailed answers to questions they had provided. He was particularly heartened by the concluding statement of the delegation that there would be more comprehensive reports in the future, as well as greater participation of the South African national human rights institutions in its preparation.
Noting the emotional tinge that had been in the voices of many of his colleagues in addressing the delegation, Mr. Pillai highlighted once again that no nation had had to suffer such an inhuman legacy of institutionalized discrimination, and its people the cruel denial of basic human dignity and their basic rights as human beings. The tasks before the country were huge and challenging. Challenging, because attitudes were slow to change, and also because of the resources needed to address them. The report amply recorded those.
Mr. Pillai said that the Committee had appreciated the report of South Africa and wished it very well. It encouraged the State to pursue the many steps it had taken and to look beyond, in particular on the basis of the discussions that they had had.
He wished to highlight some of the written answers provided this morning to oral questions posed by Experts at the last meeting. Regarding the internalization of the provisions of the Convention, he welcomed the statement that indicated South Africa was contemplating measures to criminalize racism. Concerning the courts, he welcomed the statement that further details on discrimination cases would be forthcoming.
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