18 MARCH 1997, 2:00 P.M.
Community Law Centre (UWC)
Development Action Group
Legal Resources Centre
Centre for Human Rights (University of Pretoria)
NGO National Coalition
National Land Committee
National Literacy Cooperative
Urban Sector Network
SUBMISSION TO THE TRUTH AND RECONCILIATION COMMISSION
This submission is being made by the Community Law Centre (UWC),
the Development Action Group, the Legal Resources Centre, Black
Sash, the Centre for Human Rights (University of Pretoria), the
NGO National Coalition, the National Land Committee, the National
Literacy Cooperative, the Peoples' Dialogue, and the Urban Sector
Network. We make this submission based on the conviction that
an analysis of violations of economic, social, and cultural rights
under apartheid is crucial for ensuring the implementation and
protection of the rights entrenched in our new Constitution.
The Truth and Reconciliation Commission ("TRC") is clearly
obligated, as set forth in its enabling legislation, to provide
that analysis. While it has the discretion to look at a broad
range of issues, the TRC cannot ignore violations of economic,
social, and cultural rights (e.g. violations that arose out of
the enforcement of the pass laws, forced removals, and bantu education)
and still fulfill its mandate under the law. Its obligation to
look at such violations is clear from the following provisions
of its enabling legislation:
1) the definition of "gross violations of human rights,"
which states that the TRC is to examine violations of all human
rights that are the result of acts of killing, abduction, torture,
or severe ill treatment -- thus the use of violence to enforce
the pass laws, or the killing or torture of a community activist
resisting a forced removal, is a violation of economic and social
rights that falls within the mandate of the TRC;
2) the definition of "victim," which includes an individual
who has suffered a "substantial impairment" of any of
his or her human rights as a result of a gross violation of human
3) the requirement that the TRC establish "as complete a
picture as possible of the causes, nature, and extent of gross
violations of human rights;" and
4) the requirement that the TRC provide "recommendations
of measures to prevent" violations of all human rights.
This submission also draws upon South African constitutional
law and international human rights law to show how some violations
of economic, social, and cultural rights constitute in and of
themselves severe ill treatment, and thus are violations that
the TRC must acknowledge.
This submission includes specific examples of the type of analysis
the TRC should undertake to fulfill its obligations, and show
how fulfilling this obligation is possible given the TRC's resources.
The TRC should analyse violations of the right to access to housing,
freedom of movement, choice of residence, education, health, access
to resources, and welfare and social security -- all rights that
are part of our new Bill of Rights. A historical analysis of
the State's deliberate violation of these rights based on race
and gender is crucial to the creation of a human rights culture.
Finally, this submission makes the following eight specific recommendations
to the TRC:
1. Make explicit in its analysis the connection between acts
of killing, abduction, torture, and severe ill treatment and violations
of economic, social, and cultural rights.
2. Show through illustrative examples how violations of economic,
social, and cultural rights were an important cause of gross violations
of human rights.
3. Emphasize in its final report the Constitutional imperative
of respecting and implementing economic, social, and cultural
4. Provide concrete recommendations, based on its historical
analysis, to governmental and non-governmental human rights bodies
concerning the protection of all the rights recognized in the
Bill of Rights, including economic, social, and cultural rights.
5. Elicit and highlight the connection between gross violations
of human rights and violations of economic, social, and cultural
rights in its public hearings.
6. Solicit submissions from relevant government ministries, organizations,
corporations, and associations concerning the violation of economic,
social, and cultural rights under apartheid.
7. Call upon perpetrators of violations of economic, social,
and cultural rights to acknowledge their responsibility for past
violations, support programs of restitution and reparation, and
contribute to the fulfilment and protection of all human rights.
8. Note in its final report that there are individuals and communities
that are victims of human rights abuses that are not victims of
gross violations of human rights, and emphasize the State's responsibility
to recognize and assist such victims.
We are embarking on a new chapter of human rights in this country. The Bill of Rights provides a vision of society that we have chosen to build for us and our children. A full range of economic, social, and cultural rights are for the first time constitutionally protected. In playing an important role in our historic transition, the TRC must emphasize the importance of economic, social, and cultural rights in creating a human rights culture that will ensure that we never revert back to the evils of the past. Indeed, as this submission shows, the TRC is obligated by law to do so. SUBMISSION TO THE TRUTH AND RECONCILIATION COMMISSION
The organisations making this submission have a history and track-record in the promotion and protection of human rights in South Africa. We recognise that all human rights - civil, political, economic, social and cultural - are interrelated and interdependent. Consequently, we believe that human rights should be treated in an integrated and holistic manner by all institutions involved in their protection. Our approach is that of the new South Africa. The recently enacted Constitution, which was supported by the vast majority of political parties, adopts a holistic view of human rights, recognizing economic, social, cultural, civil, and political rights. Like the new South Africa, the African region and the international community also take a holistic view of human rights.
The purpose of this submission is to explain why the Truth and Reconciliation Commission is obligated by its enabling statute to examine certain violations of economic, social and cultural rights, and to suggest ways that the Commission can fulfill that obligation.
Examining certain violations of economic, social, and cultural rights will not appreciably increase the workload of the Commission. Much of the information required is already available to the Commission. For example, the submission on education from the National Literacy Cooperation, on gender from the University of the Witwatersrand, and the anticipated submissions from the medical and journalistic professions include useful information and analysis on violations of economic, social, and cultural rights relevant to the Commission's mandate.
The Promotion of National Unity and Reconciliation Act (hereinafter
referred to as the "TRC Act") clearly requires that
the Commission investigate and examine certain violations of economic,
social and cultural rights. The Commission's obligation is clear
from the following sections of the Act:
Section 1(ix), which defines gross violations of human rights
as "the violation of human rights through the killing,
abduction, torture, or severe ill-treatment of any person and
any attempt ... to commit such an act" (emphasis added).
Thus the main focus of the Commission is on the violation of
all human rights, including economic, social, and cultural
rights, that were effected through the actual or attempted
killing, abduction, torture, or severe ill-treatment;
Section 1(xix) which defines a victim as a person or group of
persons who "suffered harm in the form of .... a substantial
impairment of human rights --- (i) as a result of a gross
violation of human rights" or as a result of an amnestied
act, and those who suffered a substantial impairment of their
human rights as a result of intervening to assist other victims.
Thus the definition of victim complements the definition of gross
violation of human rights, indicating that violations of other
human rights, including economic, social, and cultural rights,
that were the result of an act of killing, abduction, torture,
or severe ill treatment, or that were the result of an act for
which someone has received amnesty, or that were the result of
an effort to assist victims of such acts, are directly within
the mandate of the Commission's work.
Section 3(1)(a), which sets forth as one of the major objectives
of the Commission the establishment of "as complete a picture
as possible of the causes, nature, and extent of the gross violations
of human rights," including "the antecedents, circumstances,
factors, and context of such violations." Recognition of
the economic, social and cultural policies of apartheid which
led to gross violations of human rights is essential to any discussion
of the causes, antecedents, circumstances, factors, and context
of such violations. The nature and extent of gross violations
include their immediate impact on economic, social and cultural
Section 3(1)(d), which provides that the Commission is to compile
a report of its activities and findings, including "recommendations
of measures to prevent the future violations of human rights."
Thus the Commission must provide recommendations for preventing
violations of all human rights, and not just gross violations
of human rights. As recognized in the Constitution, the African
Charter of Human and Peoples' Rights, the International Bill of
Rights, and most of the recent major international human rights
treaties, human rights include economic social, and cultural rights.
It is clearly not intended that the Commission examine each and every violation of human rights -- or for that matter each and every violation that qualifies as a gross violation of human rights -- that occurred during the relevant period of inquiry, and we do not here suggest otherwise. The Commission is obligated, however, to focus on violations of "human rights" brought about through the specific acts of killing, abduction, torture and severe ill-treatment. The Commission is obligated to make recommendations for reparations to persons who suffered a "substantial impairment of human rights" through a gross violation of human rights or amnestied act, or as a result of attempting to assist such individuals. The Commission is obligated to investigate and report on the economic, social, and cultural context that led to gross violations of human rights. The Commission is obligated to make recommendations to the President concerning the protection of all human rights, and not just those that qualify as gross violations of human rights. The Commission has already shown that it recognizes these obligations, by, for example, soliciting submissions from the media on their role under apartheid, thus emphasizing the importance of both freedom of expression and the regulatory functions of the media in understanding and curtailing violations of human rights.
In this submission, we discuss briefly the three areas where it is clear the Commission is obligated to take notice of violations of economic, social, and cultural rights; provide some brief examples of the types of economic, social, and cultural rights that are implicated by certain gross violations; and suggest ways that the Commission can fulfill its obligation to look at all violations of human rights.
In the first section, we show how the definition of gross violations
of human rights includes certain violations of economic, social,
and cultural rights. In the second section, we show how certain
violations of economic, social, and cultural rights constitute
severe ill treatment. In the third section we show how violations
of economic, social, and cultural rights are part of the causes,
nature, and extent of gross violations of human rights. In the
fourth section we show how an examination of economic, social,
and cultural rights is crucial for national efforts to prevent
future gross violations of human rights. In the fifth section
we provide some brief examples to show the relevance of violations
of economic, social, and cultural rights to the work of the Commission.
Finally, in the sixth section we show how taking into account
violations of economic, social, and cultural rights will not appreciably
increase the workload of the Commission.
With this submission, we do not purport to be providing the Commission
with an exhaustive discussion of the legal and other arguments
we raise, nor with an exhaustive list of the implications of our
conclusions, nor with an exhaustive list of the ways the Commission
can fulfill its obligations. These and other issues have either
already been sufficiently discussed in other submissions to the
Commission, or we anticipate will be discussed in future submissions.
I. The Substantive Focus of the Commission and the Definition of Gross Violations of Human Rights
One of the three core functions of the Commission's work is the inquiry into "gross violations of human rights, including violations which were part of a systematic pattern of abuse." It is clear that the Commission is to focus primarily on those violations of human rights that involved killing, abduction, torture, or severe ill treatment. Thus the Commission is not obligated to undertake extensive inquiries into violations of universally recognized civil and political rights, such as equality before the law, privacy, freedom of expression, and the opportunity to vote and otherwise participate in public life. Nor is the Commission required to undertake extensive inquiries into violations of universally recognized economic, social, and cultural rights, such as formation of trade unions, protection of the family, and the enjoyment of a minimum standard of living. The Commission is obviously not obligated to investigate and analyse thoroughly all violations of these and other rights. To impose such an obligation on the Commission would make it a virtual certainty that its job would not be completed within its two year life-span. By the terms of the TRC Act, however, the Commission may not ignore the consequences of the violation of such rights in analysing the causes and antecedents of gross violations of human rights, nor may it ignore the effect of killings, abductions, torture, and severe ill treatment on the enjoyment of those same rights. As the definition of gross violations of human rights makes clear, the Commission is to focus on violations of all types of human rights that resulted from acts of killing, abduction, torture, and severe ill treatment. Thus an analysis of the effect of a particular killing on an individual or group's right to education or health care is clearly part of the Commission's mandate.
"Human rights" is not defined in the TRC Act, so the Commission must look to other sources for a working definition. There are three sources for the definition of human rights relevant to the Commission: 1) Chapter 2 of the Constitution of the Republic of South Africa; 2) the African Charter of Human and People's Rights; and 3) the International Bill of Rights, consisting of the Universal Declaration of Human Rights; the International Covenant on Economic, Social, and Cultural Rights; and the International Covenant on Civil and Political Rights. The first is the authoritative statement of what constitutes human rights within the new South African constitutional system; the second is the authoritative statement of what constitutes human rights at the African regional level; and the third is the authoritative statement of such rights at the international level. Those rights include prohibitions against invasions of a person's bodily integrity (i.e., torture, killing), economic, social, and cultural rights, and civil and political rights. South Africa has joined the rest of Africa and the international community in recognizing that the full range of civil, political, economic, social, and cultural rights are inter-related, and that the violation of any of them affects the fulfilment of the others.
In its inquiries concerning gross violations of human rights, the Commission is therefore obligated to examine violations of all human rights that occurred as a result of killings, abductions, torture, and severe ill treatment. Thus the killing of a student leader who was advocating for better schools in his community has an effect on the right to education guaranteed in the Constitution and under international law. The loss of the student leader directly affects the ability of the rest of the community to attain this universally recognized right. Those that killed the student leader may have had as one of their motives the enforcement of the "bantu education" policy. Thus the killing of the student leader may violate any number of human rights, including the prohibition against summary execution, the right to education, and the right to freely associate, to name only three.
The Commission will soon be hearing testimony on the destruction
of KTC, and the desperate efforts of thousands of people to defend
their right to access to housing. The right to access to adequate
housing is entrenched in our new Constitution at Section 26.
Furthermore, no one may be evicted from their home or have their
home demolished without an order of court made after considering
all the relevant circumstances, and no law may permit arbitrary
evictions. The residents of the satellite camps of Crossroads
and KTC were not only evicted without a court order, but their
homes were burnt and over 60 people were killed during attacks
on their homes. Thousands of people had their right to access
to adequate housing violated through killings and other
severe ill treatment. One of the causes of those killings was
a deliberate government policy to deny individuals the right to
access to housing, freedom of movement, and right of residence.
II. Some Violations of Economic, Social and Cultural Rights Constitute Severe Ill Treatment
One of the means of violating someone's human rights on which the Commission is to focus is the "severe ill treatment" of a person. While we suggest here that the concept of severe ill treatment should encompass some violations of economic, social and cultural rights, it is clear that the Commission's obligation to look at violations of economic, social, and cultural rights is not dependent on such an interpretation of severe ill treatment.
The Act provides little guidance on what is meant by severe ill treatment. The Constitution prohibits "cruel, inhuman, or degrading treatment or punishment," and one of the first decisions of the Constitutional Court held that juvenile whipping constitutes cruel, inhuman, or degrading punishment. At the international level, human rights treaties have language similar to that found in our Constitution. Interpretations of these phrases by international tribunals and jurists provide useful guidance in interpreting severe ill treatment. International tribunals and jurists have found the following to constitute cruel, inhuman, or degrading treatment:
(a) Forcing detainees to stand for long periods of time; subjecting detainees to sights and sounds that have the effect or intent of breaking down their resistance and will; or inflicting severe mental or physical stress on detainees in order to obtain information or confession.
(b) Expulsion from, or refusal of admission to, one's own country according to a discriminatory application of law; or in order intentionally to inflict physical or mental suffering; or without the necessary due process.
(c) Deprivation of certain basic needs of the person, such as the need for food, water, or sleep, if the pain or suffering inflicted is not severe enough to constitute torture.
(d) Deliberate indifference to a detainee's medical needs and deprivation of the basic elements of adequate medical treatment.
(e) Sexual abuse and other forms of gender-based violence.
(f) Prolonged judicial proceedings and delay in capital cases.
(g) Delay in removing a condemned prisoner from a "death cell" after stay of execution has been granted.
Based on the interpretation of cruel, inhuman, or degrading treatment by numerous international tribunals and jurists, we argue that the deliberate impoverishment of an individual brought about through the use of force amounts to severe ill treatment. Thus, a family that was forcibly moved to a location with no running water, inadequate or no latrines, minimal if any medical care, and substandard or no housing, suffered severe ill treatment. Although we believe that the vast majority of black South Africans who live in poverty, and the vast majority of women who are deliberately denied access to basic opportunities and societal resources, are victims of severe ill treatment, it is not necessary for the Commission to accept that view in order to find that certain extreme and deliberate acts constitute severe ill treatment.
The deliberate application of force by the government that directly
results in a lowering of living standards, and that is undertaken
with wanton disregard for the well-being of the individuals effected,
must constitute severe ill treatment. Deliberate government policy
that affirmatively denies, on the basis of race, gender, or class
access to basic societal resources, and that deliberately provides
unequal amounts and quality of such goods based on race or gender,
constitutes severe ill treatment. As with all of the types of
violations examined by the Commission, this does not mean that
each and every forced removal needs to be thoroughly examined.
It does mean, as we suggest below, that the Commission is obligated
to examine some examples of such violations, and to include a
discussion of the extent of such violations in its final report.
III. Causes, Nature, and Extent of Gross Violations
The Commission is to compile "as complete a picture as possible of the causes, nature and extent of the gross violations of human rights," including "the antecedents, circumstances, factors, and context of such violations." Such a picture would be incomplete without the inclusion of violations of economic, social, and cultural rights as a cause of gross violations of human rights. In addition, the nature and extent of the gross violations include the violation of a large number of economic, social, and cultural rights, in addition to civil and political rights. Finally, the violation of economic, social and cultural rights are certainly an antecedent to, and constitute some of the circumstances, factors, and context of, such gross violations.
The systematic violation of all human rights - political, civil, economic, social and cultural - in South Africa under apartheid created the context which resulted in gross violations of human rights. Through systematic policies and legislation the government deprived black people in this country of their right to vote, the right to freedom of speech and assembly, and basic labour rights. It also deprived the majority of its citizens of their fundamental right to live where they please, work, and receive education and social security without discrimination on the grounds of race or gender. Large numbers of people were subjected to discriminatory and arbitrary forced evictions, demolitions and resettlements in accordance with the dictates of apartheid ideologues and planners.
To enforce such deliberately inhumane policies, the State resorted
to killings, abductions, torture, and severe ill treatment. Thus
the violation of these economic, social, and cultural rights was
one of the causes that led to the more immediate violations that
are the main focus of the Commission's work. Resistance to these
oppressive laws and policies -- through demonstrations, political
organizing, and other forms of protest -- provoked in turn further
gross violations. In addition, the nature and extent of the violations
of economic, social, and cultural rights sometimes amounted to
gross violations of human rights. Thus, to use an earlier example,
the killing of the student leader not only violated that individual's
right to life, but also a range of other rights of that individual
and the community from which she came. The submission on gender
prepared by Dr. Sheila Meintjes and Beth Goldblatt from the University
of the Witwatersrand provides a number of examples of the range
of human rights violations that resulted from an act of killing,
abduction, torture, or severe ill treatment.
IV. Prevention of Human Rights Violations
Finally, the Commission must analyse the full range of the types of violations that occurred during the past in order to make useful recommendations to the President concerning the prevention of violations of all human rights. An understanding of violations of economic, social, and cultural rights under apartheid is crucial for understanding the causes, nature, and extent of gross violations of human rights, and thus crucial to developing recommendations for preventing future human rights violations.
The TRC Act clearly contemplates that the Commission will consider all human rights in formulating its recommendations. As noted above, the South African definition of human rights embodied in the new Constitution -- which was supported by all sectors of the political and legal establishment -- embraces economic, social, and cultural rights. South Africa, by integrating civil, political, economic, social, and cultural rights in its own Bill of Rights, recognizes the importance of all of these rights to the creation of a just and democratic society.
The human rights bodies established under the new Constitution
include in their mandate all human rights -- including
economic, social, and cultural rights. Thus, the Human Rights
Commission is specifically empowered to promote respect for and
protection of all human rights. The Commission for the Promotion
and Protection of the Rights of Cultural, Religious, and Linguistic
Communities is to promote the human rights of specific communities.
The Commission for Gender Equality is empowered to look at violations
specifically affecting women. Statutory bodies have also been
created to focus on specific areas of economic and social rights,
such as the Land Claims Commission. In directing that the Commission
look at all human rights, the Parliament envisioned that the Commission
would provide an analytical background plus concrete and useful
recommendations to the existing human rights bodies for the protection
of all human rights. These new Constitutional and statutory bodies
do not have jurisdiction to investigate abuses that occurred prior
to 1994. It is the Commission, therefore, which is to provide
the historical analysis for formulating policy to move our society
forward to a just and democratic government. An analysis of past
violations of all human rights is thus crucial in formulating
meaningful recommendations to these bodies.
V. Relevance of Economic, Social, and Cultural Rights to the Commission's Work: Some Brief Examples
We present here brief illustrations of how economic, social,
and cultural rights can be integrated into the Commission's work.
It is by no means an exhaustive list, but we offer it to provide
what we hope are useful examples of how the Commission can fulfill
its obligations under the TRC Act.
Education -- The right to a minimum level of education and the obligation of the state to make further education progressively available and accessible is entrenched in the Constitution and is echoed in the African Charter on Human and People's Rights, and the International Bill of Rights. The violation of the right to education is part of the cause of many gross violations of human rights. Violations of the right to education also contributed to the increased resistance of the population to the state, resulting in additional incidents of gross violations. The submission from the National Literacy Cooperation and others sets forth both the violation of the right to education under apartheid (an important component of the context of gross violations of human rights), and also provides examples of violations of the right to education through killings, abduction, torture, and severe ill treatment. That submission also provides information on how the denial of the right to education led to other human rights abuses, including gross violations of human rights.
The struggle of South Africans to attain minimal standards of education resulted in gross violations of human rights. The massacre of innocent school children peaceably marching in Soweto in 1976 is a well-known example of a gross violation of human rights involving education rights. The killing, torture, abduction, or severe ill treatment of a child affects that child's access to education.
The legacy of deliberately inferior education for a vast majority
of our country's citizens based on race and gender has vast implications
for the future of South Africa and the protection of human rights.
It is thus crucial that the Commission note where applicable
the extent that gross violations were caused by such inferior
education, and give some sense of the extent such gross violations
contributed to the failure to provide everyone with the education
to which they are entitled.
Housing, Residence, and Freedom of Movement -- The right to access to adequate housing, to reside anywhere in the country, and to freely move throughout the country, is explicitly protected in the Constitution, and in the International Bill of Rights.
Violations of the right to access to housing, and freedom of movement and residence, include the policy of forced removals. It is estimated that from 1960 to 1983, 3.5 million people were forcibly relocated. In implementing this policy, and in responding to resistance to it, numerous people were killed, tortured, abducted and severely ill treated. In addition, the implementation of the policy itself, as argued above, in many cases constituted severe ill treatment. Forced removals also led to the destabilization of numerous communities, creating individuals with little or no stake in their communities, and creating a greater willingness to resort to violence.
Forced removals, especially of the elderly, infirm, and disabled, may give rise to severe ill treatment. Documented cases of individuals who died immediately before or after a forced removal because of the government's wanton disregard of their health and well-being undoubtedly constitute severe ill treatment. The deliberate and forced removal to a place with no clean water, no sanitation, and inadequate or no housing constitutes severe ill treatment. The Commission does not have to agree that people who live in severe poverty with inadequate facilities -- as many did and still continue to do -- are victims of severe ill treatment in order to find that a specific government act that forced an individual into such a situation amounts to severe ill treatment. We submit that government action that takes a group of people who were living in one place and forcibly removes them to a different location, constitutes severe ill treatment as defined in the TRC Act.
Examples of the violation of the right to access to housing and the right to freedom of movement and residence through forced removals that involved gross violations of human rights include:
1. The fate of the Mogopa community.
2. The destruction of the Crossroads satellite camps and KTC,
which resulted in over sixty deaths. (See brief description above
at pages 12-13.)
3. The removal of people to Sahlumbe and Onverwacht. The residents
of Sahlumbe were given tents and instructed to build their own
houses. There were no latrines, and water was obtained from the
distant Tugela river. The settlement of Onverwacht consisted
of 100,000 people in 1981. There was only one medical clinic,
one police station, one supermarket, and nineteen schools that
served approximately 20,000 students.
4. The forced removal of the Bakubung people. Some were arrested
and tortured as a direct result of their resistance. Thus violations
of the Bakubung people's right to housing, freedom of movement
and residence were implemented through the use of killing,
abduction and torture.
5. The destruction of Langa, including the detention of community
leaders as well as those who resisted removal, similarly constitutes
a gross violation of human rights involving the right to access
to adequate housing.
6. The killing of Saul Mkhize in Driefontein, as part of the
resistance to forced removal of this "black spot." Mr.
Mkhize was killed because of his leadership role in the resistance
to the forced removal. In other words, it was his advocacy for
the right to access to adequate housing and freedom of choice
of residence for his community that resulted in his killing.
7. Similar violations can be found in the treatment of the people
of the following communities: Mfengu, Moutse, Braklaagte, Leeufontein,
District Six, Pageview, and Fordsburg.
These are examples not only of gross violations themselves, but
also of crucial parts of the antecedents, causes and context of
a wide range of gross violations that occurred during the relevant
period. By focusing on some of these violations, and by underscoring
the connection between them and the right to housing, the Commission
will assist us in understanding the violations of the past and
better prepare us for preventing such violations in the future.
Health Care -- The right to adequate health care
is entrenched in the Constitution, the African Charter, and the
International Bill of Rights. The most obvious examples of the
violation of this right concern the lack of medical attention
provided to those in the government's custody. The deliberate
failure to provide medical attention to those who had been tortured
or severely ill-treated illustrates the intersection between the
right to adequate health care and gross violations of human rights.
The case of Steve Biko is only one prominent example of many
such occurrences. The death of doctors, such as Neil Aggett and
Fabian Ribeiro, raise issues regarding the right to health similar
to those that the killing of the student leader raised for the
right to education. The deliberate refusal of an ambulance legally
reserved for white people to stop and provide medical attention
to a black patient constitutes severe ill-treatment. We realize
that the medical profession is in the process of preparing a submission
to the Commission on its role during the apartheid years, so we
direct the attention of the Commission to that submission for
a more thorough discussion of the types of issues raised by the
acts and omissions of that profession.
Welfare and Social Security. Apartheid created massive
inequalities between people based on race and gender. Patterns
of violence under apartheid that constitute gross violations of
human rights contributed to these inequalities, and these inequalities,
in turn, comprise part of the causes of and antecedents to gross
violations of human rights. While we do not discuss here the
complicated dynamic between poverty, discrimination, and violence,
we would refer the Commission to other submissions it has already
received, and note some recent statistics compiled by the government.
In August 1996, the Lund Committee on Child and Family Support
noted that South Africa is characterized by extremes of wealth
and of inequality, that 95% of the poor in South Africa are African,
and that many of the poorest households are those headed by women.
The report also noted that an estimated 2.3 million South Africans
do not receive a basic level of nutrition, including 87% of all
African children under the age of 12. While a thorough analysis
of the causes and effects of such inequalities is beyond the scope
of the Commission's mandate, the causal effect of such inequalities
on incidents of gross violations of human rights, and the perpetuation
of such inequalities through killings, abductions, torture, and
severe ill treatment, clearly are part of the Commission's mandate.
Allocation of Services. The distribution of resources
under apartheid deliberately denied basic services to individuals
based on race and gender. The deliberate denial of basic services
in some cases certainly constitutes severe ill treatment, especially
where it is clear that the denial was not caused by limited resources
or technology, but was based on a deliberate policy of discrimination.
The perpetrators of such violations include the numerous statutory
bodies specifically empowered to provide such basic goods and
services to the country. For example,
1. Water. The Minister of Water Affairs was specifically
empowered to distribute water from a government waterworks to
any person for any purpose approved by the Minister. Notwithstanding
this, water was distributed in such a manner that the vast majority
of white group areas had houses serviced by running water while
the majority in other areas often had no running water and had
to walk miles for access to water.
2. Electricity. Legislation provided for the provision
of electricity throughout the country. Eskom was empowered "to
investigate new or additional facilities for the supply of electricity
within any area ... so as to stimulate the provision, wherever
required, of a cheap and abundant supply of electricity. Local
authorities were licensed to provide electricity, and were obligated
to "supply electricity within the area of supply mentioned
in his license to every applicant who is in a position
to make satisfactory arrangements for payment therefor."
This mandate was carried out in a deliberate fashion so that
powerlines ran over but not into many townships, while citizens
in white areas enjoyed the benefits of those same powerlines.
3. Planning. Government policy and planning under apartheid
was specifically designed to foster "separate development,"
which in effect meant the diversion of most of societies resources
to the white population, and mostly to the white male population.
Such planning included structural inequalities based on race
and gender in access to and distribution of property; the brutal
dislocation and forced removal of entire communities; grossly
unequal access to economic opportunities and services based on
race and gender; and gross disparities in access to residential,
recreational, and community facilities. The deliberate allocation
of burdens and benefits under apartheid -- through, for example,
taxation; access to land, property, and other economic resources;
and provision of municipal services -- were implemented through
specific acts of gross violations of human rights, and are an
important part of the cause of such violations.
A similar inquiry to the three outlined above can be undertaken with respect to a variety of government policies. For example, government policy regarding the denial of post and telecommunication services, and the effect that such denial had on the provision of health care and other basic rights, is another area where incidents of severe ill treatment can probably be found.
In addition to being directly responsible for acts that constitute
severe ill treatment, many of the parastatals also developed quasi-private
security forces that were directly involved in acts of killing,
abduction, torture, and severe ill treatment. Thus in many cases
the basic rights to water, health care, and a minimal level of
subsistence were violated through such acts.
VI. Impact of Including Violations of Economic, Social, and Cultural Rights on the Commission's Work
The inclusion of violations of economic, social, and cultural
rights as set forth above will not appreciably increase the current
workload of the Commission. As mentioned above, much of the information
needed for such an analysis has already been submitted to the
Commission, or is in the process of being submitted to the Commission.
The inclusion of such violations will also not have an appreciable
affect on the number of individuals who qualify as victims under
the TRC Act, since as noted above victims include those who suffered
a "substantial impairment of human rights" through a
gross violation of human rights, or through an act for which amnesty
has been granted. Many individuals who were denied adequate
housing suffered a violation of their human rights. Those individuals
will qualify for reparations under the terms of the TRC Act only
if they can establish that the means by which they were made a
victim included an act of killing, abduction, torture, or severe
ill-treatment, or was the result of an act for which someone has
been granted amnesty.
The Commission has achieved much in its first year of existence. The information it has elicited concerning killings, tortures, and other violent acts in our past has contributed greatly to our understanding of the suffering that occurred under apartheid. The purpose of this submission is to emphasize the Commission's obligation to provide us with an understanding of why these violations occurred, and to help us to understand their occurrence within a political, economic, social, and cultural context. The vast majority of black people in this country still live under abject conditions that were deliberately created under apartheid. South Africa enjoys the unenviable distinction of having one of the worst disparities in the world in distribution of income, wealth, and resources based on race and gender. Conditions that fuelled resistance and subsequent reactions from the state led to many of the gross violations of human rights the Commission is examining. It is our view that until the personal and social consequences of the socio-economic discrimination and deprivation inflicted on black people in this country is properly acknowledged, the ultimate objectives of national unity and reconciliation will not be achieved. This does not mean that the Commission must provide a thorough analysis of all the violations of human rights that occurred in our past. It does mean, however, that the Commission must provide an analytical framework for us as a society to ensure the creation of a durable human rights culture that protects all our rights. The socio-economic legacy of apartheid is a daily reality for millions of people in South Africa struggling to obtain access to adequate housing, health care, education, food, water and social security. It is by and for those millions that the new South Africa has been formed. We owe to all South Africans, and to the legacy of past suffering and the reality of the suffering that continues, a clear statement of the devastating consequences of keeping the vast majority of our population in such abject conditions.
It is clear that the Commission is obligated under the Act to examine violations of economic, social, and cultural rights, and that focusing on such violations will enhance the usefulness and relevance of the Commission's work, its final report, and its final recommendations. It is also clear that the Commission has neither the time nor the resources to undertake a thorough and systematic investigation and analysis of all of the violations of human rights that occurred under apartheid. We do not here argue that it should. We do argue, however, that the Commission cannot escape its obligations as clearly articulated in the TRC Act. The Commission should, therefore, at least do the following:
1. In its analysis of gross violations of human rights, make the connection between such acts and all of the violations that resulted. Thus, to use an example, the analysis of the killing of a student leader should include references to the right to education and how its violation contributed to the killing, and how the killing resulted in further violations of that right.
2. In its analysis of the past, show how the violation of economic, social, and cultural rights was a direct cause of gross violations of human rights. This can be done by focusing on one or two illustrative examples of each type of violation. Thus the final report should include one or two case studies of the inter-relationship of gross violations of human rights and the right to housing, education, health care, etc.
3. In its final report, note the Constitutional imperative of respecting and implementing economic, social and cultural rights in the new South Africa, and impress upon the government the importance of legislative and other measures, including appropriate reparations, to ensure the protection and fulfilment of these rights.
4. In its final recommendations concerning the protection of human rights in South Africa, draw upon our history of human rights violations to formulate meaningful recommendations to the various constitutional and statutory human rights bodies concerning the protection of all human rights recognized in our Constitution. This would include organizations involved in education, housing, and social security. We know that the Commission is already consulting with those bodies, and urge that such consultations continue for the purpose of formulating realistic and meaningful recommendations to such bodies.
5. In public hearings on gross violations of human rights, elicit the connection between the incidents of killing, abduction, torture, or severe ill treatment and economic, social and cultural rights (as well as civil and political rights) to create a holistic picture of the abuses of the past.
6. Solicit submissions from relevant ministries, organizations and associations concerning the violation of economic, social, and cultural rights. Such organizations might include the parastatals, such as Eskom, Telkom, and Transnet (for and on behalf of the former South African Railways and Harbors). Since many of these organizations have publicly committed themselves to the new Constitution and its Bill of Rights, they should be approached to submit information either to the Commission or another suitable body on their past violations of human rights and their current plans to remedy such past violations. This falls squarely within the Commission's mandate to further reconciliation between perpetrators and victims, and between citizen and state.
7. Call upon the perpetrators of violations of economic, social, and cultural rights (a) to admit publicly their role in and responsibility for these violations, (b) to pledge publicly that neither they nor their organizations will commit such violations in the future, and (c) to commit publicly to contributing to a program of reparations (including increased provision of relevant services) to victims of their past violations.
8. Note that there are individuals who are victims of human rights violations but who are not victims of gross violations of human rights, and that it is incumbent upon the state to recognize and assist such individuals by means other than reparations as set forth in the TRC Act.
The overall purpose of the TRC during this transition period has been clear from the start: to provide an authoritative base for not only understanding what violations occurred, but to begin to understand why they occurred, and to make initial recommendations aimed at preventing their future occurrence. An examination of the violation of economic, social and cultural rights during the relevant period is thus a crucial part of the Commission's task.
We have emphasized the Commission's clear obligation under the
TRC Act to examine certain violations of economic, social, and
cultural rights, and to offer a few suggestions of how, given
its current resources and activities, the Commission can fulfill
that obligation. The Commission has already received a number
of submissions that expand upon many of the issues we raise here,
and will undoubtedly through its own solicitations and through
the activities of other organizations, be receiving additional
information that will expand upon what we have only briefly touched
on here. We only make this submission to underscore the importance
to the Commission's work of looking at violations of all human
rights as required by its enabling legislation. We would, of
course, be willing to discuss the issues raised in this memo with
interested Commissioners and staff, and remain eager to assist,
given our own limited resources, the Commission in fulfilling
its important mandate.