Presented by: Judith Cohen, SAHRC Head of Programme, Parliamentary & International Affairs

1. Presented to the Portfolio Committee on Social Development 24 November 2010 SAHRC’s Report into Issues of Rule of Law, Justice andImpunity arising out of the 2008 PublicViolence against Non-Nationals Presented by: Judith Cohen, SAHRC Head of Programme, Parliamentary & International Affairs

2. Background: South Africa’s Constitution (1996) enshrines the supremacy of the Constitution and the rule of law. The Constitution also contains the Bill of Rights, which it describes as the 'cornerstone of democracy in South Africa' and compels the State to 'respect, protect, promote and fulfil the rights in the Bill of Rights'. Recognising that the protection and promotion of human rights cannot be left to individuals or the government, Chapter Nine of the Constitution creates independent national institutions, subject only to the Constitution and the law, to transform our society from its unjust past and to deliver the fundamental rights in the Constitution to all in South Africa. The South African Human Rights Commission (SAHRC) is one such national institution, which derives its powers from the Constitution and the Human Rights Commission Act of 1994. It is also given additional powers and responsibilities by other national legislation. The SAHRC works with government, civil society and individuals,both nationally and abroad, to fulfil its Constitutional mandate. About the SAHRC

3. Section 184 of The Constitution of the Republic of South Africa, Act 108 of 1996 specifies the functions of the South African Human Rights Commission:  '(1) The Human Rights Commission must-(a) promote respect for human rights and a culture of human rights;(b) promote the protection, development and attainment of human rights; and(c) monitor and assess the observance of human rights in the Republic.(2) The Human Rights Commission has the powers, as regulated by national legislation, necessary to perform its functions, including the power -(a) to investigate and to report on the observance of human rights;(b) to take steps to secure appropriate redress where human rights have been violated;(c) to carry out research; and(d) to educate.(3) Each year, the Human Rights Commission must require relevant organs of state to provide the Commission with information on the measures that they have taken towards the realisation of the rights in the Bill of Rights concerning housing, health care, food, water, social security, education and the environment.’ Functions

4. SAHRC struggled to respond within the boundaries of its mandate and on the required scale during 2008. Commitment is needed to better respond in case of a recurrence. SAHRC was slow to respond to the 2008 violence Attempts at coordination of stakeholders not very effective Uncertainty about what standards to apply in evaluating conditions in sites Inconsistent monitoring across provinces Should have taken a stronger position on closure of Gauteng sites Lack of adherence by government stakeholders to SAHRC recommendations SAHRC has produced a policy paper to guide its response to future complex disasters, and a report describing and evaluating its response in 2008 SAHRC ROLE AND CHALLENGES

5. SAHRC currently monitoring the implementation of recommendations from its report as pro-active measures • Written follow up requests for written submissions with reporting template from all state departments • Finalizing localized investigation report for WC Equality Court • Participation in multi-stakeholder NGO forums eg SACC civil society forum, SAHRC provincial offices hosting similar forums (WC, Limpopo & KZN); continued participation in Protection Working Group and hosting Rule of Law legal service providers • Meetings with UNHCR; UN Protection Working Group and finalization of a funding agreement with UN OHCHR to carry forward its own recommendations in slide 24 • Presentations of report done to SAPS Visible Policing Unit; DOJ Development Committee and DG Excom as well as Ekurhuleni provincial Disaster Management Centre • High level engagements and presentation of critical recommendations to JCPS Ministerial cluster; Statement of Commitment from political parties and meeting with Ambassadors of African Countries • Number of presentation to parliamentary portfolio committees on xenophobia SAHRC FOLLOW UP AND CURRENT ACTIVITIES

6. Impunity undermines rule of law. Rule of law is a precondition for the realisation of rights. Human rights cannot be protected nor redress achieved without access to justice. Reports already exist on the root causes of the violence- no need for duplication. Rationale for FOCUS ON RULE OF LAW, JUSTICE & IMPUNITY

7. INTERNATIONAL LAW UN Convention Relating to the Status of Refugees 1951 UN Convention on the Elimination of All Forms of Racial Discrimination 1965 African Charter on Human and Peoples’ Rights 1981 African Commission Resolution on Ending Impunity in Africa 2005 DOMESTIC LAW The Constitution – right to life, freedom and security of person, freedom of movement; freedom from discrimination and arbitrary deprivation of property. Immigration Act 2002 – duty to deter xenophobia Refugees Act 1998 – protection against refoulement Disaster Management Act 2002 and National Disaster Management Framework 2005 – duty to assess, monitor and manage risk LEGAL AND POLICY FRAMEWORK

8. Background information requested from civil society through Consortium for Refugees and Migrants in SA (CoRMSA) Submissions requested from nine national government ministries and two Chapter 9 institutions in addition to SAHRC Submissions requested from three provincial governments most affected in 2008 (Gauteng, KwaZulu-Natal, Western Cape) Submissions requested from five most affected municipalities (Ekurhuleni, Johannesburg, Tshwane, eThekwini, Cape Town) Interviews with local police and focus groups with community members in three affected communities (Ramaphosa, Cato Manor, Masiphumelele) INVESTIGATION STRUCTURE

9. In July 2010, the SAHRC sent a request to the Minister of Social Development with specific recommendations from its xenophobia report. • Requested feedback from the Department on these recommendations. • No response was received from the Department as yet. • Presentation to the Portfolio Committee will therefore cover: • Findings of relevance and specific recommendations to Department of Social Development • General concerns and recommendations to all relevant departments Interacting with the dsd

10. Little institutional memory of similar social conflicts prior to 2008 (eg Masiphumelele) Almost no evidence provided of the resolution and management of pre-2008 conflicts – lost opportunity to learn Key state institutions have not recorded institutional memory of the 2008 attacks either – eg Ministries of Police, Defence and Military Veterans, Home Affairs, Cooperative Governance and Traditional Affairs (responsible for implementation of Disaster Management Act) Little evidence provided of state-led conflict resolution initiatives in affected communities post-2008 violence [In 1998, the DSD noted a high degree of xenophobia against illegal immigrants. It was only in 2008 that the Department drafted a concept paper on exploring the impact of xenophobia within its mandate] FINDING 1: little INSTITUTIONAL MEMORY OF PRIOR CONFLICTS Recommendation to all relevant government Departments: To compile a documentary record of institutional learning during and after the May 2008 attacks.

11. Prior to 2008, no mechanism existed to monitor ‘xenophobic’ climate. National Police have since initiated a desk on crimes against non-nationals to attempt to track patterns of crime that might indicate heightened risk. Information obtained by the desk informs additional deployment of police to at-risk areas National Police have initiated regular security assessments with regard to xenophobia, and provincial police are notified where appropriate A representative of National Police participates in the Protection Working Group – a forum for the protection of non-nationals led by UN agencies Role of NIA remains obscure as it did not make a submission FINDING 2: Lack of EARLY WARNING systems Recommendation to all relevant government Departments: Keep early warning records and (a) be clear about the purpose of the activity so that efforts are not duplicated or redundant- (b) monitor and evaluate the early warning mechanism as a tool to prevent civic violence, and (c) make all levels of government aware of it.

12. More marginal, less visible groups of non-nationals more vulnerable during attacks – eg Masiphumelele • Some groups of non-nationals feel excluded from community structures or choose not to participate as they feel threatened/unwelcome • Yet organised /participating non-national groups more likely to receive assistance • Together with CoRMSA, Gauteng Department of Community Safety has begun an initiative to include non-nationals in Community Policing Forums (CPFs) • In 2009, the DSD released its ’10 Year Review of the Population Policy Implementation in South Africa [1998-2008] on Migration and Urbanisation’. Therein the DSD recommended: • continued monitoring, evaluation and research on social cohesion; • Further research on the demographic information on migration patterns of international migrants into communities; and, • The compilation of community profiles in order to understand community dynamics. FINDING 4: PARTICIPATION IN COMMUNITY STRUCTURES Recommendations to DSD: *Through a Social Cohesion Group, arrange a workshop between parties to community mediation and proactive reintegration initiatives throughout the country to establish some best practice guidelines. *Ensure that the Social Cohesion Working Group deliberates and nominates a lead department to develop provincial conflict resolution capacity for the purpose of developing, restoring and maintaining social cohesion in areas affected by social conflict.

13. Affected areas tend to share: 1) poor relationships between local residents and key officials; and 2) indifferent, corrupt or authoritarian leaders Trust in police poor across all areas visited – encourages withdrawal from the official justice system Prevalent feeling that communities must rely on their own devices to care for and protect themselves. FINDING 5: Weak GRASSROOTS DEMOCRATIC GOVERNANCE • Recommendation to DSD: • DSD policymakers should realise the potential role of local institutions in mitigating or inciting violence and make provision for improved oversight on such bodies. • DSD should ensure that its social cohesion policy recognises nuances and in the concept of ‘community’ as during the violence many ‘community leaders’ used undemocratic measures to the detriment of both migrant rights and community safety. • The DSD should place more emphasis on the importance of meaningful disciplinary or judicial outcomes where community leaders obstruct social cohesion through negligent indifference, corruption or personal agendas.

14. Prior campaigns failed to prevent violence against non-nationals Roll-Back Xenophobia campaign, 2004 Open Hearings, DHA Counter-Xenophobia Unit (CXU) – lack of systematic monitoring or evaluation- did not prevent the hatred, resentment and unprecedented levels of violence. National Action Plan (NAP) to combat Racism makes recommendations, but has no implementing mechanism According to the DSD ‘myth-busting’ is important in promoting community cohesions as behaviour is often based on perceptions or hearsay. The DSD should ensure that when a nationbuilding policy is advocated, the risks of cementing prejudices against non-nationals should be pointed out and ways of mitigating this risk outlined. National government should adopt the DSD’s recommendations in its Population Policy for further research into social cohesion and patterns of migration so as to better understand community dynamics. FINDING 7: Prior ANTI-XENOPHOBIA CAMPAIGNS failed Recommendation to DSD: In nationbuilding policy, acknowledge and mitigate the implicit risk of cementing prejudices against non-nationals

15. Summary of the recommendations and role of portfolio committee

17. Parliamentary and International Affairs Programme – South African Human Rights Commission • Head of Programme: Judith Cohen • Email: jcohen@sahrc.org.za / stula@sahrc.org.za • Tel: 021 426 2277 • Fax 021 426 2875 • 132 Adderley Street, 7th floor ABSA Building Contact Details

18. Thank You…