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Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery on “The role of the State in implementing the ICESR and the CESCR’s Concluding Observations” at the Seminar on the ICESCR: Implications of its Ratification for South Africa, hosted by the South African Human Rights Commission, Braamfontein, 27 November 2019

Programme Director, Commissioner Ameermia,
The Vice-Chair of the UN Committee on Economic, Social and Cultural Rights, Prof Sandra Liebenberg,
Commissioners of the SAHRC,
Representatives from civil society and various government departments,
Ladies and gentlemen

South Africa’s accession to the International Covenant on Economic, Social and Cultural Rights in January 2015 represented an important step forward, giving the Covenant greater force in domestic law and deepening the enforcement of socio-economic rights in our country.

The Covenant has been a major source of influence for the inclusion of economic, social and cultural rights in our own Constitution.

The value of the Covenant is that it helps us to measure whether our domestic laws, policies and programmes comply with our international obligations.

As you know the ruling party, the African National Congress, even before it came to power in 1994, had the foresight to recognize the indivisibility of rights.

It strongly promoted the idea of justiciable socio-economic rights and, in 1990, prior to the Constitution, published a draft Bill of Rights which included socio-economic rights.

In October last year, in compliance with our obligations in terms of the Covenant, I led a government delegation which appeared before the Committee on Economic, Social and Cultural Rights in Geneva.

After constructive engagements with a wide range of civil society organisations, the South African Human Rights Commission and our government delegation, the UN Committee then issued its Concluding Observations on the 12th of October. 

There were positive aspects raised by the Committee and the Committee noted with appreciation the efforts made by Government to address the disparities inherited from the apartheid era.

The Committee also expressed its appreciation for the significant progress achieved since the ratification of the Covenant.

The Concluding Observations are transversal – cutting across the work of a number of government departments and clusters.

Without listing all the Concluding Observations, they range from an observation that the Constitution has not fully incorporated the rights enshrined in the Covenant, such as the right to work and the right to an adequate standard of living to issues relating to enhanced training for judges, prosecutors, lawyers and public officials on the Covenant, the withdrawal of our declaration in relation to articles 13 (2) (a) and 14 of the Covenant and the allocation of sufficient financial resources to the South African Human Rights Commission to enable it to effectively carry out its mandate.

The Committee recommended that we improve our data-collection system, that we provide a safe and favourable environment for the work of human rights defenders, that we intensify our efforts to ensure the equal enjoyment by indigenous peoples of the rights enshrined in the Covenant and that we increase the level of funding in the areas of social security, health and education.

Some of the other observations pertain to asylum seekers, sex workers, domestic and farm workers, labour inspectors, public and private health-care systems, school infrastructure and no-fee schools – to name but a few aspects.  In addition, some touch on our budget processes, fiscal framework and tax regime.

So in short, the Concluding Observations affect nearly everything government does – and not only the executive arm of the State, but also the judiciary and the legislature. And the recommendations provide an opportunity for the Government to re-evaluate our progress in the area of socio-economic rights.

As we continuously re-evaluate our progress, we also have to take stock of what has been achieved.

In October this year, Stats SA released its Victims of Crime statistics from the new Governance, Public Safety and Justice Survey.  The survey also included a section on, amongst others, housing, water, electricity and income.

When it comes to the main type of dwelling, over 70% of South African households live in dwellings made of concrete blocks, while informal dwellings such as stand-alone shacks come a distant second at almost 9% of the households.

Piped water in the dwelling is a service enjoyed by about 47% of all households in the country. About 28% of households have piped water taps in their yard, 13% use a communal tap and 2% use a neighbour’s tap. Over 89% of households have access to piped water.

About 87% of South African households have access to electricity through mains in the house with a conventional meter or pre-paid meter, while 6,4% have no access to electricity.

Almost 60% of households have flush toilets connected to a public sewerage system while 4% have flush toilets connected to a septic or conservatory tank. About 33% of households use pit latrines.

What this shows, is that socio-economic rights have had a significant impact in the lives of those living within our borders and that the State must continue to make access to socio-economic rights a reality for all.

We also know, from the figures provided, that we have not yet managed to eradicate poverty and inequality. When it comes to income and living conditions, it is estimated that over 50% of households think of their lives as “just getting along”, less than 1% think they are wealthy and 4% think they are very poor.

Salaries and wages are the main sources of income for most (58%) of the households, followed by social grants at 21%. The majority of households belong to low income groups (R 1 – 1500), with 16% having a monthly income of between R1 501 and R2 500 and the second largest group (11%) earned between R2 501 and R3 000.

I also want to highlight that it is important to note that in some instances we have already started working on the recommendations as set out in the Concluding Observations.  

For example, the Committee recommended that we intensify our efforts to eliminate discrimination and violence against persons with albinism.

In September this year, we met with Ms. Ikponwosa Ero, the UN Independent Expert on the enjoyment of human rights by persons with albinism, and on the 26th and 27th (yesterday and today) our Department is hosting the first National Colloquium on Access to Justice for Persons with Albinism in Kempton Park.

Just as an aside, one of the recommendations made was that Government must expedite the adoption of the National Health Insurance Bill – yet, at the same time, some political parties are actively collecting signatures and petitions and handing it over the Parliament to try and stop the Bill.

As to the process and the way forward, we did undertake to involve civil society and our Chapter 9 bodies as we popularize the Covenant and as we work within Government to give effect to the Concluding Observations.

We were somewhat delayed by the national and provincial elections, but the Concluding Observations have been sent to the various relevant government departments and plans are underway to meet with these departments early next year.

Thereafter we will convene a workshop with government, together with civil society and the Chapter 9 institutions. I think what is crucial is that we have meaningful public consultations – and not “tick box” processes.

I know that civil society has called for the process to be “inclusive, participatory, expeditious and effective” and I think a small Steering Committee, along the lines of our LGBTI Task Team, could assist in arranging the workshop itself and then also guiding the process going forward.

With the National Action Plan against Racism, Racial Discrimination, Xenophobia and Related Intolerance we also consulted more widely - such as with, for example, Nedlac – and this is something we could also consider for the Covenant.

In terms of the State’s obligations in terms of international treaties, these obligations are expressed differently from treaty to treaty. The Covenant requires States “to take steps” to the maximum of their available resources to achieve progressively the full realization of economic, social and cultural rights.

The Covenant also requires States to guarantee the enjoyment of economic, social and cultural rights without discrimination and to ensure the equal right of all people to the enjoyment of these rights.

The obligation to achieve progressively the full realization is a central aspect of States’ obligations in connection with economic, social and cultural rights under international human rights treaties.

At its core is the obligation to take appropriate measures towards the full realization of economic, social and cultural rights to the maximum of their available resources.
The reference to “resource availability” reflects a recognition that the realization of these rights can be hampered by a lack of resources and can be achieved only over a period of time.

Equally, it means that a State’s compliance with its obligation to take appropriate measures is assessed in the light of the resources—financial and others—available to it. As you know, “progressive realization” clauses found in other United Nations human rights treaties are article 4 of the Convention on the Rights of the Child and article 4 (2) of the Convention on the Rights of Persons with Disabilities.

Even though States may realize economic, social and cultural rights progressively, they must also take immediate action, irrespective of the resources they have, in five areas:

Broadly speaking, States’ are obliged to respect – i.e. refrain from interfering with the enjoyment of the right, to protect - i.e. prevent others from interfering with the enjoyment of the right and to fulfil - i.e. to adopt appropriate measures towards the full realization of economic, social and cultural rights.

As you know, the Concluding Observations obliges us to disseminate the present concluding observations widely at all levels of society, “including at the national, provincial and municipal levels, in particular among parliamentarians, public officials and judicial authorities” and that we inform the Committee in our next periodic report about the steps taken to implement them.

The Committee also encouraged Government to engage with the South African Human Rights Commission, non-governmental organizations and other members of civil society in the follow-up to the present concluding observations and in the process of consultation at the national level prior to the submission of its next periodic report.

With regards to the ratification of the Optional Protocol to the Covenant, we do have a legal opinion on the issue. But this is an issue that will take time, as it affects the whole of Government and therefore will need to be thoroughly debated and discussed across government departments and taken through the different government structures.

South Africa has to, within 24 months of the adoption of the present concluding observations - in other words in October 2020 - provide information on the implementation of the recommendations concerning the preparation of a composite index on the cost of living and access to social assistance for adults between 18 and 59 years of age, concerning the adoption of the Social Assistance Amendment Bill and concerning access to education for undocumented migrant, refugee and asylum-seeking children.

Our second periodic report is due by 31 October 2023.

The Committee also called on South Africa to update its common core document and we have done so.

Apart from the Covenant, but also of interest, is the fact that we are actively working towards the ratification of the Apartheid Convention – or as it’s more fully known: the International Convention on the Suppression and Punishment of the Crime of Apartheid – as well as the International Convention for the Protection of All Persons from Enforced Disappearance.

All these interventions and efforts show our unwavering commitment to the attainment of human rights – and we know that we can only do so successfully if we work in partnership with civil society and our Chapter 9 institutions.

Thank you.