AFRICAN CHARTER ON HUMAN AND PEOPLES' RIGHTS

 

TABLE OF CONTENT

Preamble

Introduction and Structure of the document

Chapter 1 of this Report provides a brief description of the country, in conformity with the established standard that is required by the Guidelines of the African Commission for an Initial Report.

Chapter 2 relates to the introduction to the South African legal system. The relationship between the branches of government and non-governmental organisations is also addressed in this part.

Chapter 3 deals with the general measures of implementation as far as the Charter is concerned. This Part also provides a list of the major human rights instruments that have been ratified by South Africa.

Chapter 4 deals with the measures taken by South Africa to popularise and promote human rights.

Chapter 5 deals with the South Africa's relations with other states in so far as the application of the Charter is concerned.

Chapter 6 - Conclusion and Appendices

" We, the people of South Africa, Recognise the injustices of our past; Honour those who suffered for justice and freedom in our land; Respect those who have worked to build and develop our country; and Believe that South Africa belongs to all who live in it, united in our diversity.

We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to-

Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights; Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law; Improve the quality of life of all citizens and free the potential of each person; and Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.

May God protect our people.

Nkosi Sikelel'iAfrika. Morena boloka setjhaba sa heso. God seŽn Suid-Afrika. God bless South Africa. Mudzimu fhatutshedza Afurika. Hosi katekisa Afrika".

Preamble of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996)


INTRODUCTION

The Republic of South Africa is a sovereign, democratic state founded upon the rule of law and principles of human dignity, the achievement of equality and the advancement of human rights and freedoms. Non-racialism and non-sexism are values that are entrenched in the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996), hereinafter referred to as the Constitution, which is the supreme law of the land. The rebirth of our society into a constitutional democracy is the result of the national liberation struggle against apartheid. For hundreds of years the majority of the South African people experienced severe hardships, loss of human dignity, oppression and suffering.

South Africa's new government has inherited a legal system, an education system, a social welfare system, a health system and a socio-economic system that were designed to implement colonialism and later an institutionalised apartheid system. It was a fragmented system that was unable to meet the demands of the new constitutional democracy that dawned upon the new South Africa in the first democratic elections held on 27 April 1994.

Racial prejudice and oppression of the majority of the people depicted the history of the country. Throughout South Africa's violent colonial past, vulnerable groups such as women, children and youth also suffered several forms of oppression.

The new Constitution, as illustrated in its Preamble, aims to heal the divisions of South Africa's colonial past and to establish a society based on democratic values, social justice and fundamental human rights. Hence the Bill of Fundamental Rights as contained in Chapter 2 of the South African Constitution makes provision for rights such as the right to security of the person, the right to human dignity and equality. It also provides for certain socio-economic rights that have far- reaching consequences for the standard of living of all South Africans, in particular vulnerable groups.

Since the beginning of political transformation in the early 1990s, efforts have been made to expunge obsolete and discriminatory legislation from the Statute Books. A number of international and regional instruments have been ratified or acceded to, including the African Charter on Human and Peoples' Rights on 9 July 1996. The obligations incurred as a result of South Africa becoming a party to these international and regional instruments have contributed towards government reviewing its legislation in order to ensure that it is in line with the norms espoused in these instruments.

The South African Constitution also makes provision for state institutions whose role is to strengthen constitutional democracy. These include the Human Rights Commission, the Public Protector, Auditor General, Electoral Commission, the Commission for Gender Equality and the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic communities. One of the responsibilities of such Commissions is to monitor and make recommendations to Parliament on policies and programmes on human rights.

To date South Africa has presented two country reports to the United Nations, namely a report under the Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women. These reports, together with additional information provided by the relevant organs of state, form the basis of this Initial Report. The Government is appreciative of the assistance provided by the non- governmental sector in this report writing process.

South Africa is a member of the Organisation of African Unity (OAU) and the Southern African Development Community (SADC). To date it has fostered a good working relationship with the OAU on topics of mutual interest such as the African Court on Human and Peoples' Rights and the question of peace-keeping forces. Within SADC, South Africa together with its partners has developed a Declaration on the Prevention and Eradication of Violence Against Women and Children, to be signed shortly.

South Africa acceded to the African Charter on 9 July 1996. A note verbale was entered to accompany the instrument of accession. Parliament agreed to South Africa's adherence to the Charter, but decided that the instrument of accession should be accompanied by a declaration. This declaration contains South Africa's view that consultation should take place between state parties on a number of issues. These include "possible measures to strengthen the enforcement mechanisms of the Charter" and "criteria for the restriction of rights and freedoms recognised and guaranteed in the Charter" and bringing the Charter in line with the UN's resolutions "regarding the characterisation of Zionism."

Section 231(4) of the Constitution provides that "any international agreement becomes law in the Republic when it is enacted into law by national legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament." Whilst the Charter is not enacted into South African law by national legislation, Section 233 makes provision for the application of international law: "When interpreting any legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law." South Africa has also adopted numerous laws, case law and other measures to give effect to the provisions of the Charter. Thus the South African legal system is beginning to mirror the protection of rights as provided for in the Charter, thereby ensuring the protection of human rights through incorporation of African Charter norms into the South African legal system.

This Report as required in terms of Article 62 of the African Charter is South Africa's Initial Report to the OAU. The Report serves to provide basic information on the country, it depicts the progress made thus far in terms of the African Charter on Human and Peoples' Rights as well as other relevant human rights instruments, and identifies areas for further action.

Contents

I

Structure of the Document