人权事务委员会审议南非的报告（部分翻译）

In 2000, virginity testing had been banned as condition for marriage. Had there been campaigns to try and combat those family traditions?

Domestic violence continued, as did corporal punishment, said an Expert. Around 60 percent of fathers beat or hit their children, and they were subjected to that practice in schools as well. Did the Government plan to completely prohibit corporal punishment?

Regarding trafficking, some centres had been able to identify the victims of trafficking, who were mostly women and girls. The Committee would like to receive statistics on the number of persons in those centres, how long they stayed in the centres, and what happened to them after they left.

Could the delegation inform about measures taken to prevent and punish sexual and gender based violence and encourage victims to report it? Had there been enough publicity on that and education concerning rights of victims? What steps had been taken to ensure that victims of domestic violence, including women with disabilities, had access to measures of rehabilitation and that perpetrators were appropriately published? How had upsurge of xenophobia impacted foreign women?

With regard to the lesbian, gay, bisexual and transsexual persons, an Expert congratulated the progressive legal measures undertaken to protect them. Details were asked for the non-resolved cases of violence against that marginalized community.

The Expert congratulated the Government for the constitutional provision that stated that the Court of South Africa had to consider international rights when interpreting the Bill of Rights. He hoped that the Views and Concluding Observation of the Committee would also fall under that category.

Another Expert noted that the head of the Independent Police Investigative Directorate had been suspended in March 2015, and inquired about the reasons for his suspension. . There could be allegations of a culture of impunity concerning the police if the situation was not remedied.

More information was asked on the reforms of the Judicial Inspectorate of Correctional Services. Did it have independent funding? Did it act as a national preventive mechanism?

South Africa had signed but not ratified the Optional Protocol on the Prevention of Torture. Were there plans to do so, asked an Expert. What control was exercised in private prisons? Problems of overcrowding in prisons had been reduced, an Expert noted. Was funding of prisons adequate and were there plans to increase funding?

The delegation was asked to provide further clarification and impact of the abortion law on the drop of illegal and unsafe abortions and maternal mortality. Despite the law, many women were still going for unsafe abortions. What was the Government doing to prevent that and inform women of their legal rights?

Replies by the Delegation

The delegation said that the human rights institution was only accountable to Parliament, and its budget was allocated by the Treasury.
Regarding the McCullum case, it was explained that he had not exhausted all domestic remedies and had come before the Committee. He and 131 prisoners had applied for compensation and it had becomes a civil case. The finalization of all documents was to be done by the end of 2016.

Regarding the issue of the Sudanese President al-Bashir, it had been understood that all African countries would be able to attend the conference. No sitting head had been arrested anywhere. President al-Bashir had left and there was no point in adjudicating.

On hate crimes, the delegation explained that the original approach had been to have a state policy, but this appeared to be taking too long, so the Government had gone for legislation. A Working Group comprising of a range of civil society organisations had been established. A draft bill had been given to them to amend.

On the issue of gay, lesbian, bisexual and transsexual persons, a delegate said that it was important to address specific cases. There were broad complaints but when details were demanded, the criticisms were opaque. The police were looking at eleven of the cases to see if there was enough evidence to bring them to courts.

The Trafficking Act had come into effect in August 2014. The trafficking of people for sexual purposes and the trafficking of children had already been a crime. The Act included labour trafficking and provided for a remedy mechanism.

Regarding the issue of oversight of prison facilities, it was explained that there were controllers that oversaw contracts and its full implementation. On overcrowding in prison facilities, the delegation stated that short-term offenders were placed elsewhere. A lot of success had been seen with remand detainees, whose population had been halved in Johannesburg.

A delegate said that in the first ten years since the Pregnancy Act, maternal mortality and morbidity had decreased by 50 percent. There were designated facilities that were not fully operational, which was one of the key challenges. Comprehensive sexuality education was being implemented. Virginity testing for all children was illegal, stressed the delegation.

Disability grants, and digression in relation with disability grants, and the concerns for those infected by HIV-Aids. What had been done to remedy this, they would pilot an assessment tool in order to take away the space for digression.

Regarding ukuthwala, the Constitution stipulated that any traditional practice was subject to the Constitution. Ukuthwala was not widespread, and a distinction was made between it and abduction.

Regarding polygamous marriage, during the apartheid and colonial times it had not been recognized by law, but had been practiced since the times immemorial. Now it was recognized by the Constitution. If a man was to marry more than one wife, the two wives had to agree, and the two women had equal rights.

The issue of witchcraft was addressed by the South African Law Reform Commission, which had published a paper on it in 2014, and it was also being targeted by the Commission on the Protection of Rights of Religions, Cultural and Linguistic Communities The Department of Traditional Affairs was also working with the Law Reform Commission on that subject.

Corporal punishment was illegal in schools. In the next round of revisions to the Children’s Act there were plans to prohibit it at home as well.

The Farlam Commission had taken three years to conclude its work. The President had set up the Task Team, and international experts had brought reports, looking at conduct and improvement of the conduct of the police, including training and visible policing. The current Police Commissioner had been suspended.

Efforts and campaigns were underway to promote the equality and the rights of sexual minority children in schools.

The delegation informed that general intention was to ratify the Optional Protocol, but first a mechanism needed to be developed. The South African Human Rights Commission had been approached to see whether they would be the overarching body to oversee the process.

The delegation informed that over two million people had entered South Africa since 2005. There were no refugee camps as policy was to integrate migrants. The problem of South Africa was poverty, inequality and unemployment. Many of the migrants did not have quality education and therefore completed for low-paying jobs with South Africans, which was at the root of the tensions. The high profile case of a Mozambique national being dragged behind a police vehicle had led to the prosecution and conviction of the involved policemen.

Follow-up Questions by Experts

An Expert asked why the Covenant could not be directly invoked in courts.

Another Expert asked whether corporal punishment provisions included child care institutions.

Regarding polygamy, could the delegation clarify whether it was legal or illegal? Another Expert wanted to know if the State was moving towards rendering polygamy as less and less acceptable, having in mind that it discriminated against women.

Another Expert asked that more information be provided on the Marikana killings, including statistics and the current status of the cases.

Regarding gender-based and domestic violence, could the delegation comment on the disparity between the high level of reported incidents versus the low level of convictions? What was the State Party doing to address that? Advice and legal assistance ought to be provided to the victims. Was the Government planning to collect disaggregated data on gender based and domestic violence?

On the McCullum case, regarding the delegation’s claim that he had not exhausted all domestic remedies, an Expert pointed out that South Africa had not appeared before the Committee and had not provided a claim to that effect. What was the state of play for the other 229 individuals who had made complaints? And why had the State waited for five years to investigate the complaints?

Another Expert returned to the al-Bashir case, asking the delegation to clarify the internal proceedings of the trial. The latest submissions of South Africa before the International Criminal Court were unclear. There was a strict obligation of South Africa to respect the international law and arrest al-Bashir. Could the delegation comment on the obligation of South Africa to cooperate with the International Criminal Court?

Regarding the initiation and transformation from childhood to adulthood, there was a great exploitation of that tradition in some schools, said an Expert. Some children were reported to have died in the process. Was the Government intending to interfere in that regard?

Replies by the Delegation

The delegation said that the Covenant was binding as it had been ratified by both houses of the Parliament. Whether it would be passed into a law was currently under debate.

On the status of sex alteration, the legislation was clear in terms of circumstances when such an alteration could take place.

Regarding al-Bashir who had been attending the African Union Heads of State Summit, the matter was now before the Supreme Court of Appeal, and a judgment was awaited. This was not a clear-cut issue, and was taken very seriously by the Government.

Polygamy in South Africa was recognized as a marriage and as a form of family and would not be abolished, the delegation said. There were child-headed households, households headed by grandparents, or by persons with the same sex – and such diversity was recognized by the Constitution. The customary marriage act was non-gender, so according to that logic a woman would also be able to practice polyandry. Polygamy was practiced by many Muslims in South Africa, hence the need to legislate to provide for their rights in that respect. The issue of whether the first wife had to give consent had been considered by the Supreme Court. It was a requirement under the Tsonga customary law and the Supreme Court had ruled that way.

On the discrimination against lesbian, gay, bisexual and transsexual persons, a recent document that would be provided to the Committee, explaining different services provided. Hate crimes would be categorized once the Law on Hate Crimes was passed.

Turning to HIV/AIDS, the delegation stated that 6.59 million people in South Africa were living with HIV/AIDS, which was still the primary cause of death and disability in the country. There were currently 3.4 million people on ARV treatment, resulting in the reduction of transmission in pregnancy by almost 90 percent, and an increase in life expectancy from 53 years in 2006 to 61 years in 2012. Adult mortality had declined by over 50 percent since 2004 and child and infant mortality had decreased from 2009 to 2012 by 25 percent. There was a concerted public-private effort in place to provide access to legal assistance for people living with HIV/AIDS.

With regard to the McCullum matter, the delegation agreed it would have been better if South Africa had responded when the case was taken to the Human Rights Committee. Mr. McCullum had taken a decision not to take the matter to a trial. There was an appeal, and Mr. McCullum was entitled to launch an appeal for himself. As to the late taking of action against officials, an investigation had been initiated at the time, but the senior official from Correctional Services had established that there was not enough evidence to support an investigation process. After receiving information from civil society that assaults similar to the McCullum case had happened again, the Government had been swift to reply. The Delegation asked the Committee to provide any other information they had in order to follow up.

Corporal punishment in State-run institutions was illegal, but if they were privately run, it would be possible to practice it. There were plans to amend that provision by law.

Referring to the number of 900 foreigners who had been attacked and/or killed, the delegation asked the Committee to quote the source of the information, as the Government had very different figures. All displaced foreign nationals had been given the option to return to their communities or to be integrated in South Africa.

On the initiation of children, the Constitution provided that everyone had the right to participate in the cultural life of their choice. Persons belonging to a community could not be denied the right to enjoy their culture. Initiation practices were as old as Africans. Several provinces had run such practices with success. Recent fatalities were a result of the commercialisation of the customary practice in unregistered schools and the abuse of that practice by criminals. The Government enacted several measures to counter that trend, including a 24-hour hot line, policing, and initiation testing, as well as provincial initiation task teams to monitor compliance in all initiation schools. The Government was looking to regulate initiation, and not just circumcision.

The Government intended to have a one-stop shelter for victims of domestic violence. The Sexual Offenses Act had been rolled out in order to deal with the backlog. Police stations had victim empowerment centres to provide for the privacy of victims.

On access to facilities by rural women, the delegation informed that infrastructure and roads were a priority, as was the access to justice, including police stations.

Questions by Experts

An Expert asked to what extent the observed traditional practices were in line with the Covenant.

Was it correct that with the new procedures, the asylum transit permits would be issued for five instead of 14 days? Why were reception centres closed in some areas, and left open only in border areas? What safeguards were there for asylum seekers?

Another Expert reiterated his question concerning the discrepancies concerning the Independent Police Investigative Directorate, where over 5,000 cases had been filed while only less than 100 had been taken to court.

Had there been investigations involving complaints by refugees? Concerning the amendments to the 1998 Act on access for rights and social services of refugees, was it true that its aim was to deter asylum seekers from applying for asylum? Were there barriers to medical treatment for refugees? How many appeals were there before the Refugees Appeals Board, and how many were taken to the High Court? Was it true that asylum seekers had no right to work while their procedure was under way? The delegation was also asked to inform on the issue of statelessness.

An Expert asked the delegation to address the harsh conditions in which refugees and migrants were being held in detention centres such as the Lindela Repatriation Centre, the country’s largest detention facility for undocumented migrants. Had conditions improved after the report of the Human Rights Committee? The delegation was asked to provide information on the implementation of the relevant court orders regarding the closure of refugee reception centres in Johannesburg, Port Elizabeth and Cape Town. Who had mandate to examine conditions in repatriation centres?

The Expert wanted to know the number of deaths of inmates, and the proportion of foreigners amongst them. Could conditions of juveniles be strengthened with financial support? What was the cut-off year for juveniles?

On prison overcrowding, the delegation was asked to provide disaggregated data by facility. What plans did the State Party have to improve the conditions in the Pollsmoor Prison Facility which was operating at 309 percent of its capacity, and to include recommendations of the Cameron Report? In general, what measures were taken to ensure that remand and correctional facilities had favourable conditions?

Question was asked on specific measures to ensure protection from threats, harassment and use of force against human rights defenders by private actors and the police. The delegation was specifically asked to report on the right to freedom and assembly, measures to investigate prosecute and punish violators and provide reparations, as well as to train police.

Another Expert asked for more information on arbitrary detention of migrants and unaccompanied children, and asked whether the State Party would consider signing the Convention of Stateless Persons and the Convention on Statelessness.

Was there a plan to use the other official languages in the short or long term? Efforts to translate the provisions of the Constitution were commendable. Had regulations on who received legal aid been adopted?

Could the Delegation respond to allegations regarding unlawful practices governing the monitoring and surveillance of private communications? Was the regulator of the Protection of Information Act established?

Question was raised on the assessment of the effectiveness of the programs for persons with disabilities.

The bill which provided recognition of Khoi San communities and their leaders and support them in their natural rights had been criticized by these same peoples. Could the delegation comment on that? The Khoi San language was not included among the official languages. Did the Constitution include the right to education of indigenous peoples in their own language, and did that right apply to them even when their language was not in the Constitution?

Another Expert asked about the investigation of the Simelane case of enforced disappearance in 1983, which had been raised by Desmond Tutu, the former President of the Truth and Reconciliation Commission. Why had the recommendations of the Truth and Reconciliation Commission not been implemented? What was the outcome of the Missing Persons Team?

Regarding polygamy, was there a real possibility of polyandry? Was there a group that practiced polyandry and what would be the rights of spouses in case of separation or death?

On deaths in custody, updated statistics were needed, as well as measures, an Expert said.

What measures was the State Party taking to combat corruption which affected public participation through security, asked the Expert.

Replies by the Delegation

The Independent Electoral Commission had a disability policy which provided for measures to assist people with disabilities participate in elections.

On monitoring of facilities, it was explained that the Government was trying to plug in the gaps that were not covered by the Optional Protocol on the Prevention of Torture.

Regarding missing persons, thus far 101 bodies had been recovered and 89 had been positively identified and returned to the families. A further 500 missing persons were currently under investigation. Evidence received before the establishment of the Truth and Reconciliation Commission could not be used.

Any legislation had to be in two official languages, which were not necessarily English and Afrikaans. The Constitution was available in all eleven languages and in Braille.

The Khoi San People Bill recognized the group for the first time, and its purpose was to allow for them to identify as they were all over the country. The traditional leadership had jurisdictional areas, which were referred to as soft boundaries. In terms of why the Khoi San language was not among the eleven languages in the Constitution, by the time the Constitution was adopted, the language had not been codified. The Pan-South African Language board was working on that and other languages.

In response to the decrease from fourteen to five days to file for asylum, as per the amendment of the Refugee Act, that was because most asylum seekers entered through the North East border. The current refugee reception centre was in Musina, ten kilometers from the border, and could thus be reached within a period of five days. If refugees entered through Limpopo, Johannesburg was the nearest centre.

Every asylum seeker, who had entered through a port of entry, was issued an asylum permit which allowed him to travel to the nearest centre to apply for asylum. Refugees could not be arrested, if they informed the official that they were in South Africa to claim asylum, even if they had no documents. It was up to the official to send them to the nearest asylum centre where they could apply for asylum.

With regard to the deportation from one to another centre, the delegation explained that undocumented migrants were arrested and transferred directly to the nearby border centre if they came from a country that abutted them. There were various other places where migrants were kept before they were deported out of South Africa. The right to work for asylum seekers was not curtailed.

The South African Human Rights Commission had jurisdictional oversight over the Lindela Repatriation Centre as did the Parliamentary Portfolio Committee on Home Affairs, and the International Red Cross. All of those regularly visited and inspected the Centre.

Regarding the closure of the reception centres in Johannesburg, Port Elizabeth and Cape Town, a report had just been given to the Constitutional Court on the challenges of the reopening of those offices, but it was important to note that they were being reopened.

South Africa was in the process of considering ratification of the two Conventions on Statelessness.

On conditions of prison facilities, the delegation explained that South Africa was prioritising areas to reconstruct. The Pollsmoor Prison had been entirely emptied out and all inmates had been moved to other facilities. Judicial inspectorates, non-governmental organisations and lawyers for human rights had since visited. Staffing of nurses and psychologists had been stepped up, while infrastructure was still a challenge which would be addressed. Two new facilities had been built in the Western Cape creating an additional 600 spaces.

The South African Human Rights Commission had emphasized the issue of provision of food and the right to complain by inmates.

It was explained that those aged fourteen to eighteen were considered children, while those from 18 to 21 were kept separately from adults.

Refugees were not deported as they had a legal status in South Africa. Failed asylum seekers had recourse and could repeal the decision. If that was not successful, they could take it for judicial review.

The delegation said that the Immigration Act did not allow for detention of undocumented migrants in excess of 30 days, unless an official allowed an additional extension for a maximum of 90 days. Those were detained for nationality checks as well as issuance of travel documents, and were held until their process was done. If the process was not completed within 120 days, they were released.

Unaccompanied minors were placed in safety, and were not detained. No migrants were detained unless it was made clear to them that they were detained to check their documents. Those at the Lindela Repatriation Centre were those for whom an investigation had proven that they did not have the necessary documentation to be in South Africa.

Legal aid was awarded to those who did not have the means to appoint their own representatives, and that was set by the Legal Aid Guide approved by the Parliament.

Follow-up Questions by Experts

Regarding the South African Development Cooperation Organisation, could the delegation state the reasons for removing the right of individual petition and the dissolution of the Tribunal in the wake of a very important case?

The delegation was also asked to provide more information on alleged conditions of solitary confinement in some prison facilities.

Closing Remarks

SUSAN SHABANGU, Minister in the Presidency Responsible for Women, said that the Constitution had brought a new commitment to the advancement of human rights in South Africa. The Covenant contained many provisions aligned with the Constitution of South Africa. 21 March, National Day Against Racism, had been established with the slogan “Racism not in my Name, Racism not in my Country.” Ms. Shabangu express hope that the delegation had been able to answer the questions and would submit the rest in writing. The delegation looked forward to receiving the concluding observations.

FABIAN OMAR SALVIOLI, Chairperson of the Human Rights Committee, thanked the delegation and said this had been a fruitful exchange, considering it was the first time the State Party sat before the Committee. It was important to prevent any kind of torture and cruel treatment. Detention conditions was very important as was the safeguarding of the rights of detainees. The rights of asylum seekers, refugees and other people in vulnerable situations was important, and the existing legislation needed to be implemented. As to customary practices, the problem was neither in the past nor in the present: the problem was male chauvinist practices. Today was International Women’s Day and it was important to emphasize the rights of men and women on an equal footing.

__________

For use of the information media; not an official record