Remarks by Vusi Madonsela, Esquire, Director-General of the Department of Justice & Constitutional Development, on the occasion of the Annual General Meeting of the Foundation for Human Rights and Gala Dinner, held on 22 February 2019, Protea Fire & Ice, Menlyn, Pretoria
Madam Director of Proceedings, Ms Yasmin Sooka, Executive Director of the Foundation for Human Rights;
Madam Chairperson, Ms Thoko Mpumlwana and Members of the Supervisory Board of the Foundation;
Dr Bernard Rey, Head of Development Cooperation- EU Delegation to South Africa;
Distinguished Ladies and Gentlemen,
Colleagues and Friends;
Evening greetings to you all!
Madam Director of Proceedings, I stand but for a single instant between you and, in absentia, the distinguished Justice Jody Kollapen, who scarcely needs any elaborate introduction here tonight. I am absolutely certain I may, in your good name, publicly tender his profuse apology for his inability to attend this prestigious occasion on account of a prior commitment out of which he could not extricate himself.
I have taken license to acknowledge his apology publicly, for, this morning, out of politeness, he thought it appropriate to inform me of his regret at the fact that he is going to miss out on what I would have to say here tonight. I have cheerfully received his apology, taking comfort in the fact that none of the Justices of our land would be present here tonight to adjudicate over the veracity of any of the claims and propositions I am about to make. However, no sooner did the proceedings commence, did I hear the Chairperson of the Supervisory Board announce the arrival of Justice Seraj Desai in our midst this evening. Needless to say that my cheerfulness was short-lived.
Well, it is some little time ago that I was first asked whether I would be prepared to deliver a keynote address. Now I am bound at the outset to confess to you that delivering public addresses has been and is very little in my way. I have spent nearly two months shy of three years at the Department of Justice and Constitutional Development avoiding having to give speeches.
But it came about on this occasion, for it was suggested to me that it was necessary for me to speak here tonight, and was further explained to me that it did not really very much matter as to what it is I may wish to say here tonight, to such an illustrious audience as I now behold.
I must admit that there was a great charm to me in the idea of addressing members of civil society. I say so advisedly, because I know it often occurs that members of civil society, especially in South Africa, never fail to seize any opportunity to lecture government on any given occasion. Naturally, I was anxious, if I might, to have an opportunity of lecturing those who had so many opportunities of reading and learning; undoubtedly, have given many useful lectures to government. But the difficulty was to find the subject on which I can captivate such a distinguished audience.
May I say it is, indeed, a circumstance of happy augury that I have been accorded the distinct honour and privilege of addressing you here this evening, on this special occasion of the Annual General Meeting of the Foundation for Human Rights. I feel honoured by the invitation – almost as honoured, in fact, as I feel challenged by the subject I have set myself, the full extent of which I may have culpably failed to measure.
The Bonfire of Human Rights Education and the great need for it in South Africa, not presuming to dictate any plan or system respecting it, is deplorably easy to agree on. I can only add that I view human rights education as one of the most important subjects which we, as a people, must engage in and sincerely strive to realise. Why human rights matter? – that‘s regrettably a famously difficult question for some people to answer, today.
That every person may receive at least the basic knowledge of basic human rights and fundamental freedoms, thereby be enabled to understand the construct of our constitution and the values that underpin it, by which he or she may duly appreciate the value of our free and independent institutions, enjoy the entitlements designated for him or her and internalise the corresponding human and citizen responsibilities imposed upon him or her by this supreme law of the land, seems to be an object of vital importance, even on this account alone, to say nothing of the advantages and the satisfaction to be derived from being able to compare it to the laws of our neighbours.
For the remainder of my short tenure as Director General of the Department of Justice and Constitutional Development, which is not too far from its end date, I desire to see the time when public human rights education – and, by its means, active citizenry, enterprise, industry and enlightened social and political morality, – become much more general than they are at present; and should be gratified to have it in my power to contribute something to the advancement of any measure which might have a tendency to accelerate that happy period to which we all aspire.
The constitutional mandate of the Department of Justice and Constitutional Development (DoJ&CD) is to ensure that the conceptualisation of justice is rooted in a deep respect for human rights and fundamental freedoms. The DoJ&CD is designed to play a critical role in making the justice system accessible for all.
The current context in our country, 25 years into democracy, is one that exhibits risks, given the high levels of racialized poverty and inequality, a declining economy, and extreme forms of corruption, now known as State Capture, which result in the fiscal inability of the State to meet its constitutional obligations, thereby resulting in social and economic harm.
In the most recent and ensuing times, we have witnessed and continue to observe the tendency by many elements in our society seeking to undermine the constitution and erode hard won gains. Alongside the rising levels of fraud and corruption and various typologies of contact crimes, we have observed an upsurge in incidents that seek to undermine gender equality rights, gender identity and the rights of various other vulnerable groups. In this context, the DOJ&CD has its very important role cut out for it to play, as it did, among others, in the period leading to the Presidential Summit Against Gender Based Violence and Femicide.
DOJ&CD and Human Rights
Human rights are at the core of the mandate of the DOJ&CD and constitute the underpinning of all its planned activities. While South Africa is hailed as a constitutional democracy, with a constitution that is considered to be one of the most transformative in the world, the acid test is whether South Africans know and understand their human rights, where and how they can seek redress if these rights are threatened or violated.
Many reputable men and women, across our society, have pointedly observed that democracy for ordinary citizens should not end with formal rights set out in various pieces of legislation and casting their ballots during periodic elections. This means that a democratic order should foster a wide range of institutions of participatory democracy, in partnership with civil society, with a deliberate purpose to realise the goal of an informed and empowered citizenry, fully conscious of both its rights and entitlements, and its corresponding obligations and responsibilities, respectively.
DOJ&CD and Socio-Economic Rights
The Bill of Rights enshrined in our constitution does not only contain traditional civil and political rights, colloquially referred to as first generation rights. It also makes provision for and guarantees protection of socio-economic rights which are justiciable in the courts of law.
In this regard, South Africa’s ratification of the Covenant on Economic, Social and Cultural Rights, which is a major human rights treaty, presents us with an opportunity to accelerate our quest of addressing the legacy apartheid, characterised by discrimination, inequality and underdevelopment, and to actively advocate for socio-economic justice for all.
It is regrettable that 25 years into democracy, we find ourselves still battling to address the challenges of poverty, unemployment and socio-economic marginalisation faced by predominantly poor and black females in the rural and peri-urban areas. For an example, the Baseline Survey of 2017-2018 revealed that more than half the women in rural areas were not aware of their rights.
The DoJ&CD bears the obligation to ensure that socio-economic rights play a much larger role in the development of other areas of law. That must, as of necessity, include the development of the common-law to amend the rules of property and contract, and African customary law to protect the rights of women to own land.
Through its partner the Foundation for Human Rights, the DoJ&CD was able to engage with the civil sector organisations in the human rights sector to have the government ratify the International Covenant on Economic, Social and Cultural Rights. Naturally, the hopes of our people for the renaissance of our legal system have been raised. On that, as government and civil society, we should never be found wanting.
Interaction between Civil Society and DoJ&CD
An important instrument for the DOJ&CD has been the Socio-Economic Justice for All (SEJA) Programme, generously funded by the European Union, in respect of which we have partnered with the FHR and broader civil society organisations to expand and broaden our reach into communities, using a rights based approach. The SEJA Programme has become an important instrument and channel for engagement between government and civil society on a range of policy issues. In recent times, we have seen the SEJA Programme creating a platform for a coordinated civil society and government engagement in dialogue on a range of public policy issues, including socio-economic rights in South Africa and the International Covenant of Social, Economic and Cultural Rights, broader human rights issues such as the development of the Hate speech and Hate Crimes Bill and the finalisation of the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and related intolerances, to mention but a few.
South Africa is a diverse plural society in which the constitution provides for a non-racist non-sexist equal society, premised on the right to dignity. However South Africa is not a racially just society. Government has sought to remove apartheid laws from the statute books and developed new legislation that promotes human dignity and counters discrimination.
However, individuals have used the anonymity given by social media platforms to make racist comments. It is now a matter of public record that Penny Sparrow, an estate agent, was found guilty of racism by the Equality Court, while Vicky Momberg is appealing a 5 years sentence imposed by the Magistrate’s Court for crimen injuria.
Having hosted the Durban Conference on Racism, Racial Discrimination, Xenophobia and related intolerances, we have been hard at work with public consultations in every province on people’s experiences of racism. The DoJ&CD was tasked with developing a National Action Plan (NAP) to Combat Racism, Xenophobia and related intolerances. The DoJ&CD compiled a number of drafts, taking into account submissions made by individuals, faith based organisations, government departments, Chapter 9 institutions corporates such as Google and civil society organisations. It also took into account submissions made by special interest groups such as Afri-forum, De Klerk Foundation and trade unions. The mobilisation of such a large number of civil society formations would have not been possible without the Foundation for Human Rights, which acted as a central coordinator. This past Tuesday, the Joint Cabinet Committee has considered the NAP and has recommended it for approval by Cabinet.
In this regard, my special thanks go to Ms. Yasmin Sooka, and to many other active role players for their sterling contribution to the completion of that work.
South Africa’s Constitution prohibits discrimination on the basis of sexual orientation, and is one of a very few to do so internationally. The DoJ&CD has, in partnership with civil society organisations that represent the interests of the LGBTIQ+ community, drafted the Hate Crimes and Hate Speech Bill to prohibit hate speech and hate crimes from being perpetrated against members of that community on the basis of their sexual orientation. In addition DoJ&CD, together with the South African Police Services, established Provincial Task Teams and National Task Teams as well as a rapid response team to deal rapidly with reported cases on crimes perpetrated against the LGBTIQ+ community.
The Bill is a great achievement because it prohibits certain conduct, without undermining the right to freedom of expression and the right to practice one’s religion, both of which are enshrined in the Bill of Rights. The role of the FHR in developing the Hate Crime Bill and Hate Speech Bill was fundamental as it mobilized civil society organizations around the bill and provided relevant commentary and expertise on the document. The Bill is an example of how a fruitful cooperation between the government and civil society can result in a better protection of human rights.
The Constitution guarantees everyone the right to equality before the law and to equal protection of the law. In this regard, Legal Aid South Africa provides legal representation at State expense, both in criminal and civil matters for accused persons and litigants who otherwise cannot afford to purchase the services lawyers in private practice.
The DoJ&CD, through Foundation for Human Rights, has been also supporting the Community-Based Advice Offices (CAOs), which ensure access to justice for the disadvantaged and marginalized communities in various parts of our country. The impact of Community-Based Advice Offices on the realization of socio-economic rights by the most marginalized communities has been described in detail in a number of research papers developed by the Foundation for Human Rights.
The research papers have been that presented to DoJ&CD as a contribution to our future policy development efforts. The contents of these papers will and must be taken into account in our future policy decision making processes as an important body of evidence.
Gender-Based Violence (GBV)
The DoJ&CD is dealing with the scourge of gender based violence by establishing specialised units to deal with the prosecution of perpetrators of gender based violence in specially designated Sexual Offences Courts. These courts are intended to help fast track cases through the criminal justice system and are designed to protect victims from secondary victimisation. The FHR and the DOJ&CD have also hosted workshops provincially for doctors, nurses, prosecutors and investigators having to deal with GBV crimes. The focus of the workshops has been on the forensic work needed to prosecute successfully.
Sustainability of Civil Society
A meaningful government and civil society interface requires a truly independent and sustainable civil society, which is fundamental for a thriving democracy. This is particularly true in the age of a shrinking civil space around the globe, with far right wing ideologies gaining more ascendency and influence in Europe, for example, in countries such as Poland and Hungary, and, surprisingly, in other parts of the developing world, such as the recent developments in Brazil.
We need to be aware that a threat to civil society will not always take the form of a violent crackdown. In fact, increasingly, we will see the crackdown adopting more subtle manifestations, such as onerous regulatory framework or limitations imposed on funding received from abroad. We all know that civil society that is well-funded is more sustainable, capacitated in terms of human resources and expertise, and more capable of engaging in public policy debates and mobilising civic capital on issues germane to human rights, the rule of law and service delivery.
I believe civil society is better able to operate freely and independently within a favourable legal environment. The SEJA Programme in South Africa, has created a unique opportunity for interaction between the DoJ&CD and civil society on many of these issues, including the matter of sustainability. As part of the efforts focused on sustainability, the FHR has commissioned a number of research papers looking at sustainability of civil society in South Africa, and has engaged on the issue with DoJ&CD, particularly in the context of community-based advice offices. I am happy to say that there is convergence in our thinking and approach to the subjects.
This year we will be celebrating the 25th anniversary of our Constitutional Democracy. Our Constitution, with its justiciable socio-economic rights, has brought with it the hope of a better society and country. Together with it, the ratification of the International Covenant of Social, Economic and Cultural Rights, carries the promise of a better world.
As we prepare to go our Sixth Democratic Elections, let us remember all those who fought for our freedom. Let this be a poignant reminder of where we come from. Most of all, Ladies and Gentlemen, colleagues and friends, let us use this commemoration of the 25th Anniversary of our constitution to reinvigorate and inspire us all, both in government and in broader civil society, to continuously strive to improve the quality of life of all our people – to build a better country and a better world.
As I conclude, I wish to express our sincere appreciation to the Foundation for Human Rights, the Members of the Advisory Board, the Executive Director, Ms Yasmin Sooka and staff for their invaluable support and partnership on our united objective to promote and protect the human rights of all our people.I thank you for your attention.