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South African Law Commission`s report on group and Human Rights

15 November 1991

In 1990 the African National Congress placed its draft Bill of Rights before the people of our country because we believe that the people should be conversant with the matters raised in this important document so as to be better equipped to fully participate in the shaping of a new constitution.

In its draft, the ANC committed itself unequivocally to the so-called first generation of human rights - i.e. personal rights, political rights and the various rights and freedoms which every individual should enjoy. Our draft Bill of Rights also provided for the protection of religion, language, culture, workers` rights, gender rights, the rights of the disabled as well as the rights of children.

In addition, the ANC formulated social, educational, economic and welfare rights - the so-called second generation rights - as well as third generation rights, namely the right to development, rights to a safe environment and the right to peace. We argued that second generation rights,affirmative action and positive action to rid our country of racism, racist practices and the massive disparities created by the apartheid system will have to be crucial elements in a Bill of Rights.

There are similarities between the Law Commission`s proposals and those of the ANC`s Constitutional Committee. Indeed the South African Law Commission appropriates some of the language of democracy and of the democratic movement. This is a substantial advance compared with its preliminary report.There is a large measure of agreement between ourselves and the Law Commission in regard to the civil and political rights that should be entrenched. We also welcome the recognition that the internationally accepted human rights instruments, which provide for comprehensive first, second and third generation rights are relevant. The Commissions acceptance of the need for a Human Rights Commission and the establishment of an ombudsperson are important departures which can only enhance the rights enjoyed by the citizen.

What is unfortunate is that, like the National Party in its constitutional proposals, the Law Commission employs the concepts of democracy only to give them a limited, if not a completely different meaning.

There are serious differences in relation to social and economic rights and affirmative action. A Bill of Rights that conveniently ignores South African realities is wholly deficient in our view.

In a society where equality has historically existed and in which human beings have always been placed more or less on par insofar as political, social and economic rights are concerned, the Law Commission`s Bill of Rights might have sufficient merit. But, in a society such as ours, in which millions have by law been dispossessed of the land and other property, denied housing, denied development, denied education and skills, denied proper health care and welfare, such a Bill of Rights is inadequate. The Law Commission takes no account of the massive disparities and inequalities created by racial domination and apartheid.

First Generation Rights.

The ANC firmly believes that all our people should enjoy all the basic civil liberties, personal rights and liberties which are consistent with a democratic and humane society. This has been the basic and most central plank of the ANC`s political programme since 1923. Our people have suffered too much under human rights violations associated with racism for us to treat this issue lightly. The inclusion of First Generation Rights is therefore of fundamental importance to us.

It is clear also that as negative rights or the claims the citizen makes against the state, these rights are justiciable and that such justiciability will be the major method of enforcement.

The Law Commission is at best equivocal on a host of fundamental civil liberties. While the ANC Bill of Rights proposes the abolition of the death penalty, the Law Commission leaves this to the discretion of the courts.There is also no commitment against censorship and the government`s right to maintain secret files on citizens. A freedom of information clause is also conspicuously missing. The rights of women seem to be in jeopardy once they are married because the Law Commission makes no statement about legal equality between men and women after marriage.This will be of small comfort to those of our citizens who are the victims of gender oppression. Discrimination against persons on grounds of their sexual orientation does not even receive mention.

Second Generation Rights.

We differ fundamentally with the South African Law Commission with regard to this category of rights. It is of relevance to note that all, but one, of the members of the Law Commission were drawn from the White section of the community and its report consequently reflects the perceptions and values of White South Africans. These are not the perceptions of the majority of the people.

We most vigorously contest the Law Commission`s submission that the second generation of rights are unenforceable and would therefore undermine the credibility of the Bill of Rights. It apparent lack of concern shines through in passage that deserves to be quoted in full: At page 488 we read: "Surely the right to health (of the child) is not a legally enforceable right, but a privilege which the creator may grant or take away from human beings"

Ironically, while clinging to this dogmatic assertion, the Law Commission concedes the right to a primary school education. How, we ask does such a right differ fundamentally from the right to primary heath care? or the right to primary nutrition?

Throughout its discussion of this issue the Law Commission confuses rights as entitlements, and rights as capacity. Like the right to primary education, that to primary health is an entitlement which the government must be committed to fulfilling. In the case of health by creating a free, national health service.

The paltry concessions the Law Commission makes in the direction of education and health make a mockery of its claim that its Bill of Rights provides for all the people of our country. As it stands, the Law Commissions Bill of Rights is a Bill of Rights for the "haves", who are largely big corporations and whites. It offers very little to the "have nots", who are largely poor and black.

Social and Economic rights are not unenforceable as the Law Commission falsely claims. They can be enforced through various mechanisms including the courts, commissions and through legislative action.Modern human rights jurisprudence recognises the need for a Bill of Rights to address social, economic and environmental rights in conjunction with civil and political rights.

It is only dictators who pose a choice between bread and freedom. The ANC says the people of South Africa deserve both bread and freedom.

Affirmative Action.

We reject the Commissions narrow, watered down version of Affirmative Action. In our view Affirmative and Positive action are valuable mechanism to ensure the orderly and responsible reversal of the effects past discrimination. These can be applied to land, housing trAining, education, employment, development and business. The notion that Affirmative Action is retribution, as the Law Commission implies, is mean-spirited. If it is not undertaken the unequal power relations established by racism and apartheid will be perpetuated.

Constitutional Court.

In its proposed Bill of Rights, the ANC supported the establishment of a Constitutional Court. But this should be a new court which makes a clean break with the past, and not part of the existing court structure which has been tainted by its association with the enforcement of apartheid laws.

The present judiciary, including the Appellate Division, is illegitimate and does not enjoy the confidence of our people. It can never be the ultimate defender of a Bill of Rights. We wold insist also that the Ombudsperson and Human Rights Commission become part of enforcement mechanisms providing for speedy redress for citizens in the enjoyment of the full spectrum of human rights.

Conclusion.

The Law Commission says its approach in formulating the Bill of Rights was intended to address the relationship between the state and the individual.It does not deal with relations between citizens. This is an approach completely at variance with the tradition of civil rights law pioneered in most countries since the Second World War.

The effect of the Law Commission`s approach is that huge areas of racial discrimination and racist practices will be left unmolested, as long as they are in the private sphere. We would say that this is the privatisation of apartheid.

Left to their own devices, as the Law Commission proposes,corporations, companies and private persons, who provide public services such as housing, accommodation, catering, entertainment, recreation, etc will be legally permitted to discriminate against others on the basis of race, religion, gender or other arbitrary criteria. A meaningful Bill of Rights that will assist our country to move out of the era of apartheid requires provisions that will eradicate racist practices from both the public and the private domain.

Sadly, the Law Commission has not fulfilled the mission it set itself. The Bill of Rights it proposes will entrench the individual rights and preserve he interests of the rich and powerful at the expense of the large majority. A Bill of Rights must enshrine rights which will ensure that the substance as well as the form of apartheid will be removed from our society.

Issued by:
The Department of Information and PublicitySouth African Law Commission`s report on group and Human Rights

15 November 1991

In 1990 the African National Congress placed its draft Bill of Rights before the people of our country because we believe that the people should be conversant with the matters raised in this important document so as to be better equipped to fully participate in the shaping of a new constitution.

In its draft, the ANC committed itself unequivocally to the so-called first generation of human rights - i.e. personal rights, political rights and the various rights and freedoms which every individual should enjoy. Our draft Bill of Rights also provided for the protection of religion, language, culture, workers` rights, gender rights, the rights of the disabled as well as the rights of children.

In addition, the ANC formulated social, educational, economic and welfare rights - the so-called second generation rights - as well as third generation rights, namely the right to development, rights to a safe environment and the right to peace. We argued that second generation rights,affirmative action and positive action to rid our country of racism, racist practices and the massive disparities created by the apartheid system will have to be crucial elements in a Bill of Rights.

There are similarities between the Law Commission`s proposals and those of the ANC`s Constitutional Committee. Indeed the South African Law Commission appropriates some of the language of democracy and of the democratic movement. This is a substantial advance compared with its preliminary report.There is a large measure of agreement between ourselves and the Law Commission in regard to the civil and political rights that should be entrenched. We also welcome the recognition that the internationally accepted human rights instruments, which provide for comprehensive first, second and third generation rights are relevant. The Commissions acceptance of the need for a Human Rights Commission and the establishment of an ombudsperson are important departures which can only enhance the rights enjoyed by the citizen.

What is unfortunate is that, like the National Party in its constitutional proposals, the Law Commission employs the concepts of democracy only to give them a limited, if not a completely different meaning.

There are serious differences in relation to social and economic rights and affirmative action. A Bill of Rights that conveniently ignores South African realities is wholly deficient in our view.

In a society where equality has historically existed and in which human beings have always been placed more or less on par insofar as political, social and economic rights are concerned, the Law Commission`s Bill of Rights might have sufficient merit. But, in a society such as ours, in which millions have by law been dispossessed of the land and other property, denied housing, denied development, denied education and skills, denied proper health care and welfare, such a Bill of Rights is inadequate. The Law Commission takes no account of the massive disparities and inequalities created by racial domination and apartheid.

First Generation Rights.

The ANC firmly believes that all our people should enjoy all the basic civil liberties, personal rights and liberties which are consistent with a democratic and humane society. This has been the basic and most central plank of the ANC`s political programme since 1923. Our people have suffered too much under human rights violations associated with racism for us to treat this issue lightly. The inclusion of First Generation Rights is therefore of fundamental importance to us.

It is clear also that as negative rights or the claims the citizen makes against the state, these rights are justiciable and that such justiciability will be the major method of enforcement.

The Law Commission is at best equivocal on a host of fundamental civil liberties. While the ANC Bill of Rights proposes the abolition of the death penalty, the Law Commission leaves this to the discretion of the courts.There is also no commitment against censorship and the government`s right to maintain secret files on citizens. A freedom of information clause is also conspicuously missing. The rights of women seem to be in jeopardy once they are married because the Law Commission makes no statement about legal equality between men and women after marriage.This will be of small comfort to those of our citizens who are the victims of gender oppression. Discrimination against persons on grounds of their sexual orientation does not even receive mention.

Second Generation Rights.

We differ fundamentally with the South African Law Commission with regard to this category of rights. It is of relevance to note that all, but one, of the members of the Law Commission were drawn from the White section of the community and its report consequently reflects the perceptions and values of White South Africans. These are not the perceptions of the majority of the people.

We most vigorously contest the Law Commission`s submission that the second generation of rights are unenforceable and would therefore undermine the credibility of the Bill of Rights. It apparent lack of concern shines through in passage that deserves to be quoted in full: At page 488 we read: "Surely the right to health (of the child) is not a legally enforceable right, but a privilege which the creator may grant or take away from human beings"

Ironically, while clinging to this dogmatic assertion, the Law Commission concedes the right to a primary school education. How, we ask does such a right differ fundamentally from the right to primary heath care? or the right to primary nutrition?

Throughout its discussion of this issue the Law Commission confuses rights as entitlements, and rights as capacity. Like the right to primary education, that to primary health is an entitlement which the government must be committed to fulfilling. In the case of health by creating a free, national health service.

The paltry concessions the Law Commission makes in the direction of education and health make a mockery of its claim that its Bill of Rights provides for all the people of our country. As it stands, the Law Commissions Bill of Rights is a Bill of Rights for the "haves", who are largely big corporations and whites. It offers very little to the "have nots", who are largely poor and black.

Social and Economic rights are not unenforceable as the Law Commission falsely claims. They can be enforced through various mechanisms including the courts, commissions and through legislative action.Modern human rights jurisprudence recognises the need for a Bill of Rights to address social, economic and environmental rights in conjunction with civil and political rights.

It is only dictators who pose a choice between bread and freedom. The ANC says the people of South Africa deserve both bread and freedom.

Affirmative Action.

We reject the Commissions narrow, watered down version of Affirmative Action. In our view Affirmative and Positive action are valuable mechanism to ensure the orderly and responsible reversal of the effects past discrimination. These can be applied to land, housing trAining, education, employment, development and business. The notion that Affirmative Action is retribution, as the Law Commission implies, is mean-spirited. If it is not undertaken the unequal power relations established by racism and apartheid will be perpetuated.

Constitutional Court.

In its proposed Bill of Rights, the ANC supported the establishment of a Constitutional Court. But this should be a new court which makes a clean break with the past, and not part of the existing court structure which has been tainted by its association with the enforcement of apartheid laws.

The present judiciary, including the Appellate Division, is illegitimate and does not enjoy the confidence of our people. It can never be the ultimate defender of a Bill of Rights. We wold insist also that the Ombudsperson and Human Rights Commission become part of enforcement mechanisms providing for speedy redress for citizens in the enjoyment of the full spectrum of human rights.

Conclusion.

The Law Commission says its approach in formulating the Bill of Rights was intended to address the relationship between the state and the individual.It does not deal with relations between citizens. This is an approach completely at variance with the tradition of civil rights law pioneered in most countries since the Second World War.

The effect of the Law Commission`s approach is that huge areas of racial discrimination and racist practices will be left unmolested, as long as they are in the private sphere. We would say that this is the privatisation of apartheid.

Left to their own devices, as the Law Commission proposes,corporations, companies and private persons, who provide public services such as housing, accommodation, catering, entertainment, recreation, etc will be legally permitted to discriminate against others on the basis of race, religion, gender or other arbitrary criteria. A meaningful Bill of Rights that will assist our country to move out of the era of apartheid requires provisions that will eradicate racist practices from both the public and the private domain.

Sadly, the Law Commission has not fulfilled the mission it set itself. The Bill of Rights it proposes will entrench the individual rights and preserve he interests of the rich and powerful at the expense of the large majority. A Bill of Rights must enshrine rights which will ensure that the substance as well as the form of apartheid will be removed from our society.

Issued by:
The Department of Information and Publicity


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