Human Rights Diversity and Social Justice

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Human Rights Diversity and Social Justice

• The South African Experience

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(No Transcript)
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Outline

• Legacy
• The Constitution
• Laws and policies
• Litigation
• Administrative response

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South Africa the ethnic make-up

• Black a number of groups
• Nothing like as many as Nepal!
• Coloured
• Mixed race (especially in the Cape)
• Indian
• White
• Afrikaans speaking (Afrikaaners Dutch)
• English speaking

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Apartheid Separation

• Especially since 1948
• Involved many humiliating provisions
• Pass laws for blacks
• Group Areas Act (restrictions on where blacks
  could live)
• Homelands
• Bans on inter-racial marriage and sex
• Separate legislative houses for whites, coloured
  and Indians none for blacks
• Separate (worse) universities etc

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And then.

• Secret negotiations
• Release of Mandela 1990
• Interim Constitution 1993
• Elections 1994
• Final Constitution 1996 based on interim
• Blacks take rightful place in politics (gradually
  by PR election system)

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Constitution

• Constitution clearly directs that sufficient
  priority be given to dealing with the
  consequences of past discrimination and poverty
• Geoff Budlender

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Two strategies (linked)

• Affirmative action for past disadvantage

• Economic social and cultural rights for all

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Historic Disadvantage

• Recognising the historically diminished use and
  status of the indigenous languages of our people,
  the state must take practical and positive
  measures to elevate the status and advance the
  use of these languages
• 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.

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.Procurement

• When an organ of state contracts for goods or
  services, it must do so in accordance with a
  system which is fair, equitable, transparent,
  competitive and cost-effective.
• (2) Subsection (1) does not prevent them
  implementing a procurement policy providing for
• (b) the protection or advancement of persons, or
  categories of persons, disadvantaged by unfair
  discrimination.
• (3) National legislation must prescribe a
  framework within which the policy referred to in
  subsection (2) may be implemented.

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.Procurement

• When an organ of state contracts for goods or
  services, it must do so in accordance with a
  system which is fair, equitable, transparent,
  competitive and cost-effective.
• (2) Subsection (1) does not prevent them
  implementing a procurement policy providing for
• (b) the protection or advancement of persons, or
  categories of persons, disadvantaged by unfair
  discrimination.
• (3) National legislation must prescribe a
  framework within which the policy referred to in
  subsection (2) may be implemented.

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Social Justice I

• Housing
• 26. (1) Everyone has the right to have access to
  adequate housing.
• (2) The state must take reasonable legislative
  and other measures, within its available
  resources, to achieve the progressive realisation
  of this right.

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Social Justice I

• Housing
• 26. (1) Everyone has the right to have access to
  adequate housing.
• (2) The state must take reasonable legislative
  and other measures, within its available
  resources, to achieve the progressive realisation
  of this right.

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Social Justice II

• Health care, food, water and social security
• 27. (1) Everyone has the right to have access to
  -
• (a) health care services, including reproductive
  health care
• (b) sufficient food and water and
• (c) social security, including, if they are
  unable to support themselves and their
  dependants, appropriate social assistance.
• (3) No one may be refused emergency medical
  treatment.

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Social Justice II

• Health care, food, water and social security
• 27. (1) Everyone has the right to have access to
  -
• (a) health care services, including reproductive
  health care
• (b) sufficient food and water and
• (c) social security, including, if they are
  unable to support themselves and their
  dependants, appropriate social assistance.
• (3) No one may be refused emergency medical
  treatment.

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Social Justice III

• Education
• 29. (1) Everyone has the right -
• (a) to a basic education, including adult basic
  education and
• (b) to further education, which the state,
  through reasonable measures, must make
  progressively available and accessible.

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Social Justice III

• Education
• 29. (1) Everyone has the right -
• (a) to a basic education, including adult basic
  education and
• (b) to further education, which the state,
  through reasonable measures, must make
  progressively available and accessible.

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Land Reform

• 25. (2) Property may be expropriated only in
  terms of law of general application -
• (a) for a public purpose or in the public
  interest and
• (b) subject to compensation
• (4) For the purposes of this section -
• (a) the public interest includes the nations
  commitment to land reform,
• (5) The state must take reasonable legislative
  and other measures, within its available
  resources, to foster conditions which enable
  citizens to gain access to land on an equitable
  basis.

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Land Reform

• 25. (2) Property may be expropriated only in
  terms of law of general application -
• (a) for a public purpose or in the public
  interest and
• (b) subject to compensation
• (4) For the purposes of this section -
• (a) the public interest includes the nations
  commitment to land reform,
• (5) The state must take reasonable legislative
  and other measures, within its available
  resources, to foster conditions which enable
  citizens to gain access to land on an equitable
  basis.

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Land Reform contd

• (6) A person or community whose tenure of land is
  legally insecure as a result of past racially
  discriminatory laws or practices is entitled, to
  the extent provided by an Act of Parliament,
  either to tenure which is legally secure or to
  comparable redress.
• (7) A person or community dispossessed of
  property after 19 June 1913 as a result of past
  racially discriminatory laws or practices is
  entitled, to the extent provided by an Act of
  Parliament, either to restitution of that
  property or to equitable redress.

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Land Reform contd

• (6) A person or community whose tenure of land is
  legally insecure as a result of past racially
  discriminatory laws or practices is entitled, to
  the extent provided by an Act of Parliament,
  either to tenure which is legally secure or to
  comparable redress.
• (7) A person or community dispossessed of
  property after 19 June 1913 as a result of past
  racially discriminatory laws or practices is
  entitled, to the extent provided by an Act of
  Parliament, either to restitution of that
  property or to equitable redress.

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Legislative and Other Measures

• Procurement
• Land Reform
• Black Economic Empowerment
• Employment Equity
• Housing laws and policies

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What difference does it make to put things in a
Constitution?

• Requires action
• Cant be easily changed
• Keeps rights approach in forefront
• Elite may be or become less concerned about the
  poor
• Dominane of the ANC (now at least) may be a
  problem for accountability

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Land Reform 3 Strategies

• Redistribution to provide the disadvantaged and
  the poor with access to land for residential and
  productive purposes.
• Land restitution covers cases of forced removals
  that took place after 1913.
• Land tenure reform
• to improve the tenure security of all South
  Africans
• to accommodate diverse forms of land tenure,
  including types of communal tenure.

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Black Economic Empowerment

• Broad-based Black Economic Empowerment Act 2003
• Administrative body
• Codes of Practice
• Guidelines
• Indicators
• Strategy for Government

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Employment Equity Act 1998

• Affirmative Action
• applies to employers with gt50 employees, to state
  or employers with large turnover
• Eliminate barriers
• Promote diversity
• Training
• Preferential treatment but not quotas
• Employment equity plans with numerical goals
• Reporting
• Enforcement procedures

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Enforcement of ESC Rights?

• Cant rely on Government
• Courts
• South African Human Rights Commission
• How to take case of ESC rights to court?

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Lets unpack Housing

• everyone has the right
• to have access
• to adequate housing.
• reasonable legislative and other measures
• within its available resources
• progressive realisation of this right.

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Grootboom

• Squatters living in appalling conditions
• Went to court eventually to Constitutional
  Court
• Relying on Constitution, international law

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The Constitutional Court
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(No Transcript)
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Court Order in Grootboom

• The Constitution requires the state to devise and
  implement within its available resources a
  comprehensive and coordinated programme
  progressively to realise the right of access to
  adequate housing.
• The Programme must include reasonable measures to
  provide relief for people who have no access to
  land, no roof over their heads, and who are
  living in intolerable conditions or crisis
  situations.
• The state housing programme in the area of the
  Cape Metropolitan Council fell short of the
  requirements

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Grootboom impact for people

• ?The Grootboom community have won a degree of
  temporary security of tenure around a sports
  field in Wallacedene and some very basic
  services. Their situation is far from ideal, but
  at least they do not face imminent eviction and
  have access to water and toilets. They have been
  incorporated into the local authoritys housing
  plan for the area and should be allocated
  permanent accommodation within the next two
  years. ?
• Sandy Liebenberg

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Wallacedene in 2006

• Their houses are all made of scrap material that
  burns easily, their children might walk the
  litter-filled streets with bare feet, they might
  not make enough food to properly feed their
  families. If you look at it that way, they're
  only slightly better off than they were during
  apartheid.
• http//alex2capetown.blogspot.com/2006_09_01_alex2
  capetown_archive.html

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Impact on Administration

• ?I work with the judgment daily, and I think it
  is very carefully and skilfully written. It has
  had a real impact on official housing policy and
  on the way in which the courts deal with
  evictions. But it has a weakness. It does not
  deal with the question of what you can do if you
  are a person who has no home, and you are left
  out in the cold. Is there any direct remedy
  provided under the Constitution? Can you get a
  direct benefit by going to court? The judgment is
  quite weak on this point. All you are entitled to
  is a reasonable programme which will give you
  access within a reasonable period. It does not
  give you a directly enforceable right as an
  individual.?
• Budlender

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SAHRC

• All government bodies have to report on their own
  performance on human rights
• SAHRC has to make regular reports on performance
  of nation as a whole in respect of ESC Rights
• Suitable task for such a body?

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Treatment Action Campaign

• HIV positive mothers
• Government refused to give ARV
• Court ordered

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Evaluation of land reform

• Restitution was slow
• Date twice extended
• New law in 2003
• Redistribution slow
• 30 land intended to be redistributed after 8
  years only 3
• wiling seller willing buyer didnt work
• Overall Effective land reform continues to be
  elusive

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Black Economic Empowerment Problems

• Use of blacks as fronts for white businesses
• Limited range of beneficiaries political
  favouritism
• Development of a small black elite

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Education

• Disappointing progress in higher education
  figures while students still predominate high
  dropout rate
• Problems with rural schools
• But overall reasonable measures are being taken

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Housing

• Well over one million houses
• But still not enough unable to cope with growth
  in households!
• Still 2.2 million households without adequate
  housing
• But right to housing informs various government
  programmes.
• Courts have protected many against eviction

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Problems

• World economy
• Cautious approach
• Market based
• Need to carry minorities
• Federal system capacity of provincial
  governments
• Attitudes

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Conclusions

• Largely ethnicity blind approach
• Even BEE means black, coloured and Indian
• Emphasis on really needy
• Important role of courts and SAHRC
• May increase if strains emerge in politics
• Political control does not necessarily translate
  into benefits for poorest
• Having ESC Rights in Constitution has been of
  definite value
• Change takes time