COMMENTS ON THE SOUTH AFRICAN GOVERNMENT’S FIRST COUNTRY REPORT ON THE IMPLEMENTATION OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (ICERD)

TO

THE UNITED NATIONS COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION

ALTERNATE REPORT BY SOUTH AFRICAN CIVIL SOCIETY ORGANISATIONS

COMPILED BY

SOUTH AFRICAN NATIONAL ANTI-DISCRIMINATION FORUM – FAZE 2

P.O Box 30808

Braamfontein, 2017

Johannesburg, South Africa

Telephone: + 27 11 403 7270/1

Fax: + 27 11 403 5637

Email:

AUGUST 2006

1. Introduction and Background to this Alternative Report

The compilation of this report is facilitated by the South African National Anti-Discrimination Forum- Faze 2 ( Faze 2) ; the National Consortium for Refugee Affairs (NCRA) ; the Human Rights Institute of South Africa (HURISA) ; and Ditshwanelo CAR²AS (DC). Each of these four non-governmental organisations exists to contribute to the social and economic transformation of South Africa, through the promotion and protection of the rights to non-racialism, non-sexism, equality, human dignity, and freedom, enshrined in the Constitution. Collectively, we have at the core of our work a common agenda, which is to eradicate racism, xenophobia, and all forms of discrimination, which, twelve years into our democracy, continues to thrive throughout South African society. In fulfilment of this vision, we monitor the implementation of policies and laws aimed at advancing equality, in order to enhance public participation, and to promote increased public accountability from government departments in respect of their domestic and international obligations to the International Convention on the Elimination of Racial Discrimination (ICERD); the Convention against Torture (CAT); the Convention on the Elimination of Discrimination against Women (CEDAW); and international and regional conventions on the rights of refugees and asylum seekers.

Through our respective organisational mandates, we have established and sustained credible, and mutually rewarding relations with faith-based, community-driven, and non-governmental organisations in all nine provinces of our country that work in some of the most neglected and marginalized communities. Through this national network of alliances and partnerships, we implement programme activities with sectors of society that remain peripheral to mainstream social, economic, and political decision-making processes, such as the poor in rural areas, the impoverished in urban townships, women, refugees, asylum seekers, the disabled, and people living with HIV and AIDS.

This report takes into account the views and experiences of a cross-section of civil society formations, some of who are situated in remote, and rural districts outside the radar of popular attention and discourse. The report draws heavily on the proceedings of a national consultative meeting organised by the South African National Anti-discrimination Forum – Faze 2, in April this year to examine South Africa’s progress on the implementation of its Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).

2. Legal Framework for the Elimination of Racism and Discrimination and the Attainment of Equality

The Founding Provisions of the Constitution stipulates that ‘South Africa is one, sovereign, democratic state’ founded on the values of ‘ Human dignity, the achievement of equality and the advancement of human rights and human freedoms, non-racialism and non-sexism’.

The right to equality is provided for in Section 9 of the Bill of Rights. It stipulates that:

1.  Everyone is equal before the law and has the right to equal protection and benefit of the law.

2.  Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

3.  The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation age, disability, religion, conscience, belief, culture, language and birth.

4.  No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

5.  Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

In keeping with the commitment set out in Section 9.4 in the Bill of Rights, the Promotion of Equality and Prevention of Unfair Discrimination Act was passed in 2000. Also known as the Equality Act or PEPUDA, this law is widely seen as a central tool for ensuring that unfair discrimination in all its forms are outlawed, and that the value and the right of equality is actively promoted through legislative measures. The Act aims to eradicate the legacy of structural and systemic inequality in South Africa. It provides for positive measures for the advancement for any group or persons disadvantaged by unfair discrimination on any of the grounds recognised in the Act, while prioritising victims of unfair discrimination on the basis of race, gender, and disability. In terms of the Act, special Equality Courts are to be set up in every magisterial district to enforce the provision of the Equality Act. The Equality Act also stipulates that it seeks to integrate into domestic law the provisions of international instruments such as ICERD and CEDAW.

A second, but equally important, piece of legislation that seeks to outlaw racial discrimination is the Employment Equity Act that came into effect in 1999. The Employment Equity Act focuses specifically on the employment sector, and aims to promote and achieve equity in the workplace, by encouraging equal opportunity amongst all workers. It seeks to promote equal opportunities for previously disadvantaged groups through a set of provisions for affirmative action and protection against, amongst others, unfair discrimination and sexual harassment.

Other relevant laws or policy statements that aim to eliminate unfair discrimination and promote equality include the South African Schools Act of 1996, the Preferential Procurement Policy Framework Act of 2000, and the White Paper on Affirmative Action in the Public Service. The South African Schools Act contains specific provisions to undo the apartheid legacy in the education system. Similar commitments are found in policy statements such as Batho Pele: White Paper on the Transformation of Public Service Delivery, and the White Paper on an Integrated National Disability Strategy that aims to address unfair discrimination in state service delivery systems.

3. A Review of the Implementation of Laws and Policies to Eliminate Racism and Discrimination

South Africa ratified ICERD on the 10th December 1998. It is disconcerting therefore that such a long period of time has lapsed before it meets its international obligation to report on the implementation of ICERD. The official country report submitted to the United Committee on CERD is dated, and relies mainly on a summary of key pieces of legislation put in place, without examining whether these laws are achieving the desired results; how ordinary citizens experience and /or perceive the implementation of these legislative measures; nor the challenges or ‘good practice models’ derived from the implementation of these laws.

Whilst it is widely recognized, and commended, that South Africa has a very comprehensive policy framework for the elimination of racial discrimination in all its forms, it is fitting to examine the extent to which these various policy pronouncements in fact shift the status quo for ordinary citizens, who, in our organizational experience, continue to bear the multiple burdens of poverty, racism and discrimination.

For the purposes of this report, our submission will focus specifically on aspects of the implementation of the Equality Act, referred to in paragraph 147 of the report, given its centrality in addressing the legacy of racial discrimination in South Africa, and the measures it proposes towards the attainment of equality. The second part of this submission addresses the plight of refugees and asylum seekers living in South Africa.

3.1 Equality Courts

Pivotal to the object of the Equality Act is the establishment of Equality Courts to provide civil remedies victims of unfair discrimination through a process that is fair, accessible, affordable, and aimed at restoring the dignity of victims.

The process of establishing the equality courts started in June 2003, and was due for completion by March this year, when a total of 390 equality courts should have been set up in across the country. By the end of March 2006, 865 cases had been brought before the equality courts. Of these, 417 dealt with racial discrimination, 207 with hate speech, 97 with harassment, 101 with labour matters, and 43 with discrimination on the grounds of HIV status. The number of cases brought before the equality courts belie ongoing incidents of racism and discrimination. Our research shows that apartheid era covert racism has given way to new, subtler expressions of discrimination, evidenced by daily media accounts of racially motivated violence in schools, in the workplaces, and in public spaces. Yet, such incidents do not reach the equality courts. Research carried out by the IDASA, shows that the low number of cases brought before the equality courts can be directly ascribed to the lack of public awareness about the role and functions of the equality courts. While a number of courts did indicate that they had embarked on public awareness campaigns, the majority had not advertised or made adequate efforts to inform the community about the function and the role of the court.

An estimated 2023 equality clerks and 1318 magistrates and judges have received specialist training from the Justice College to preside over proceedings in equality courts. The specialist equality training is provided over a two-day period covering a range of topics from ‘ social context training’ to the procedures for dealing with matters in the equality courts. In addition to their duties in the equality courts, equality courts often also have to deal with domestic violence, child support, or similar matters. In our view, given current workloads of equality court staff, and the relative newness of the equality legislation, both the quality and quantity of training programmes must be strengthened to equip staff with adequate knowledge and skills deal with matters brought before the equality courts.

3.2 The Promotion of Equality

Besides dealing with the provisions of unfair discrimination, the legislation also had, as part of its rationale, that

government should promote equality. Sections 24 and 28 of the legislation deals with the general responsibilities around promoting of equality, the duty of the state to promote equality, to have awareness programmes, plans, further legislation, codes of practice, to provide advice and assistance to ordinary people, to develop internal complaint mechanisms within government if there were breeches of equality. The South African Human Rights Commission, and other institutions set up by the Constitution, had to assist complainants, and assist in bringing about the conditions for the active promotion of equality. Chapter 5 of the Equality Act, says that state institutions, that is government departments, have two years, from the operationalisation of the provisions in Chapter 5, to produce departmental plans, and to submit these to the South African Human Rights Commission to ensure compliance by state institutions with the provisions of the Equality Act. However, Chapter 5 of the Equality Act is yet to be operationalised. Five years after the promulgation of the Equality Act, government is yet to introduce Regulations for the implementation of the promotional aspects of the Act. As a result, government departments have yet to produce their plans, and account to the public on the measures they take towards the attainment of equality.

3.3 Community Awareness About the Equality Act

Our work with community-based, and paralegal organizations, indicates that there is general lack of awareness about the provisions of the Equality Act, among service providers and communities alike. In many communities, especially those less literate or educated, the rights set out in the Constitution, often remain shrouded in a language foreign to people’s everyday parlance and experience. The lack of common definitions of concepts such as ‘ hate speech’ or ‘gender’ or ‘equity’ lend themselves to different interpretations, and because the lay - person does not necessarily understand how these fit in with his or her reality, it is difficult to translate these rights and responsibilities into community-driven social commitment to promote equality.

In addition, traditional structures are particularly resistant to change as many of the rights enshrined in the Constitution and the equality laws are contrary to antiquated traditional and cultural practices. For example, women still experience insurmountable obstacles in claiming their rightful inheritance from deceased parents or partners. Activities aimed at raising awareness must include traditional, religious and cultural structures, and must find creative ways of negotiating outdated belief systems and the creation of a human rights culture in South Africa.

4. Refugees and Asylum Seekers

Contrary to the assertion that the report makes in paragraph 148 that the Roll Back Xenophobia campaign was launched as a cooperative partnership with government, the fact of the matter is that the campaign was launched as a tripartite partnership between the South African Human Rights Commission, UNHCR and the National Consortium for Refugee Affairs. This is clearly set out in the founding documents commonly referred to as “The Braamfontein Statement” and “The National Plan of Action.” The campaign is an ongoing public awareness project that seeks to promote the appreciation of the diversity of all people who live in South Africa. It is a civil society driven initiative and is currently a partnership project between the UNHCR and NCRA and in no way is it a formal partnership with government. The NCRA was set up in 1997 as a civil society initiative to promote the rights of refugees and migrants and not solely to promote the Roll Back Xenophobia campaign as asserted in paragraph 155. Whilst it is commendable that the Immigration Act makes specific provision for the Department of Home

Affairs (DHA) to tackle the issue of xenophobia, it is worthy to note that to date the Counter- Xenophobia Unit within DHA is yet to be operational. According to documentation from the launch of the National Immigration Branch, the role of the unit is to counter xenophobia within the ranks of the NIB. Thus the unit is more inward looking for internal purposes without a strong emphasis on the general public at large.