The National Action Plan
Incorporating International and Regional Human Rights Instruments into Our Law
Since 1994, our country has signed, ratified or acceded to the most important
international and regional human rights instruments, documents and treaties.
Milestones regarding the incorporation of United Nations and Regional Human
Rights treaties include the following:-
- Section 231 of the Constitution gives the procedure for acceding to
and ratifying international agreements and then adopting them
into our domestic law.
- Section 232 of the Constitution states that customary international
law is our law unless it is inconsistent with the Constitution or an
Act of Parliament.
To demonstrate the effectiveness of Section 232, it may be said that The United
Nations (UN) Convention on Genocide (1948) is part of the South African domestic
law although South Africa has not yet acceded to it simply because this Convention
forms part of Customary International Law.
We have made a determined effort to accede to and ratify a number of human rights
treaties both at international and regional levels. These treaties include but are not
limited to the following:-
International & Regional Instruments that South Africa has ratified:
The United Nations Convention on Elimination of all Forms of
Discrimination Against Women (CEDAW)
The United Nations Convention on the Rights of the Child (CRC)
The African Charter on Human and Peoples' Rights
The Hague Convention on the Civil Aspects of International Child Abduction
The United Nations Convention on the Status of Refugees
The United Nations Protocol on the Status of Refugees
The African Charter on the Rights and Welfare of Children
rganisation of African Unity's Convention Governing the Specific Aspects of
Refugee Problems in Africa
International and Regional Instruments that South Africa has signed and is in the
process of ratifying or acceding to by the South African Parliament:
The International Covenant on Civil and Political Rights
The International Covenant on Economic, Social and Cultural Rights
The Convention on the Elimination of All Forms of Racial Discrimination
The Convention Against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment (Convention Against Torture)
The Convention on the Political Rights of Women
Human Rights Reports that South Africa has submitted to the United Nations
The Report on The Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) submitted to the UN in February
1998
The Report on The UN Convention on the Rights of the Child submitted to
the UN in November 1997
The Report on The African Charter on Human and Peoples' Rights was
developed. It was completed in October 1998 and has been submitted to the
African Commission.
Further International and Regional Human Rights Challenges
As a matter of urgency, South Africa must:
Ratify The International Covenant on Civil and Political Rights
Ratify The International Covenant on Economic, Social and Cultural Rights
Ratify the Conventions that deal with:
torture
racial discrimination
Ratify the Statute that establishes the International Criminal Court
Accede to the optional protocal of The African Charter on Human and Peoples'
Rights on the establishment of an African Court of Human and Peoples' Rights
Do everything that is necessary to incorporate international and regional human
rights law into our own law
Addressing The Challenges Presented by the International and Regional Human
Rights Instruments
Lead departments to present the key Covenants and Conventions to parliament for
ratification
Parliament to proceed with ratification of the of the Covenants and Conventions
ratified by the Cabinet
The State Law Advisers to incorporate international and regional human rights law
into our own law
Preparation of reports to the various treaty bodies and the regional structures
responsible for monitoring and implementation of international and regional
human rights treaties
Monitoring And Implementation of the International and Regional Human Rights
Instruments
The Office of the President
The South African Parliament and its various committees
The South African Human Rights Commission
The Commission for Gender Equality
The United Nations Treaty Reporting Bodies
How the NAP is Set Out
Effective promotion of human rights needs an integrated approach. The NAP is based on the premise that all human rights are:
universal
indivisible and
interdependent.
Nevertheless, for the sake of convenience, we have presented the rights in this NAP under three broad headings:
Civil and Political rights
Economic, Social and Cultural rights
The Rights to Development, Self-determination, Peace and a Protected
Environment
The rights that we discuss are derived from two sources.
The Bill of Rights of the 1996 Constitution
The provisions of relevant international and regional human rights instruments
like:
The Universal Declaration of Human Rights
The International Covenant on Civil and Political Rights
The International Covenant on Economic, Social and Cultural Rights
The African Charter of Human and Peoples' Rights
Other human rights instruments, documents and treaties that seek to
advance the rights of disadvantaged and vulnerable groups such as
women, children, people with disabilities, people with HIV or AIDS and
refugees.
On the next page there is a list of the human rights that we deal with in this document, under the three broad headings:
Civil and Political Rights
equality
life
freedom and security of the person
privacy
labour rights
political rights
access to justice
just administrative action
citizens
aliens
refugees
expression
the rights of arrested, detained and accused people
Economic, Social and Cultural Rights
employment
housing and shelter
health
food
water
land
social security
education
freedom of culture, religion and language
rights of children and young people
The Rights to Development, Self-Determination, Peace and a Protected Environment
Framework For The Discussion of Each Right
Each right that we deal with in this document, is discussed according to
the following framework:
Constitutional Obligations
International Obligations
What Has Been Done
Policy
Legislation
Administrative Steps Taken
Further Challenges
Addressing the Challenges
Evaluation and Monitoring
Resources and Budget
The Rights
Civil and Political Rights
The implementation of the following rights is discussed in this section:
equality
life
freedom and security of the person
privacy
labour rights
political rights
access to justice
just administrative action
aliens
refugees
citizens
expression
the rights of arrested, detained, convicted or accused
people
EQUALITY
CONSTITUTIONAL
OBLIGATIONS
Equality includes the full and equal enjoyment of all rights and freedoms.
Everyone:
is equal before the law
has the right to equal protection and benefit of the law
is protected against any unfair discrimination, directly or indirectly, by the
State or any person on the basis of one or more grounds, including:
race
gender
sex
pregnancy
marital status
ethnic or social origin
colour
sexual orientation
age
disability
religion
conscience
belief
culture
language or
birth
The State must enact legislation to prevent or prohibit unfair discrimination within three years of the enactment of the Constitution
INTERNATIONAL
OBLIGATIONS
Our international obligations are guided by:
The Universal Declaration of Human Rights
The International Covenant on Civil and Political Rights
The International Covenant on Economic, Social and Cultural Rights
The International Convention on the Elimination of all Forms of RacialDiscrimination
The International Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW)
The UN Convention on the Rights of the Child
The African Charter on Human and Peoples' Rights
The International Covenants enshrine the principle of non-discrimination. This means that:
all human beings are created equal and with equal rights all their rights should be protected and promoted equally, regardless of their race, sex, language, religion, social and economic status, national and social origin
WHAT HAS BEEN DONE
POLICY
The government's equality policies are designed to prioritise the elimination of the legacy of systemic inequality, focusing on race, gender, economic status and disability through:
A National Disability
Strategy
A Draft National
Gender Policy
Departmental Gender
Policies
Implementation of the Beijing Commitments
LEGISLATION
The Employment Equity Act of 1998
This eliminates unfair discrimination in the workplace, implements affirmative action measures for black people, women and people with disabilities.
The Water Services Act of 1997
The National Water Act of 1998
The National Forest Act of 1998
These three Acts provide for equal access to water, water and sanitation services and forestry.
Equality Legislation Drafting Unit
The Department of Justice has established this unit to draft equality laws that will provide:
ways of addressing unequal treatment between individuals a framework for the prohibition of discrimination and the elimination of inequality in all sectors of life, particularly:
employment
health
education
family
finance
The following Bills are under consideration:
The Recognition of Customary Marriages Bill (1998)
The Amendment of Customary Law of Succession Bill (1998)
ADMINISTRATIVE
STEPS TAKEN
The following have been established:
National gender machinery
The Commission for Gender Equality
Office for the Status of Women
Gender focal points within government departments
The South African Human Rights Commission
The Youth Commission
A specialised unit to address disability, established in the Office of the Deputy President
FURTHER CHALLENGES
Racism is a major problem affecting the development of a
human rights culture. Numerous violent acts, motivated by
racism are still taking place, especially in educational
institutions, the mines and on farms.
There are deep-rooted inequalities as a result of the effects of
racial discrimination
Gender discrimination
Inequality and discrimination on the basis of:
disability
HIV/AIDS
sexual orientation
age
youth
Economic discrimination
Inadequate enforcement mechanisms
ADDRESSING THE CHALLENGES
The State should make laws and take any other possible
measures to remedy the effects of unfair discrimination and to
ensure the full and equal enjoyment of all rights and freedoms
under the Constitution. To this end the government will:
Pass Equality Legislation in the third quarter of 1999
Implement the Employment Equity Act
Draw up sectoral policies and administrative measures to
ensure the realisation of the minimum standards identified in
the Equality Legislation
Strengthen enforcement mechanisms through, amongst other
things, providing adequate resources and facilitating access in
rural areas
Provide public education and education for service providers
on equality and awareness of diversity
Involve all layers of government in the promotion of equality
(Specific measures are addressed in relevant sections of this
NAP document.)
Investigate and eradicate discrimination within the judicial
system
Establish a Commission for the Promotion, and Protection of
the Rights of Cultural, Religious and Linguistic Communities
MONITORING AND IMPLEMENTATION
BODIES
SA Human Rights Commission
Office on the Status of Women
Office on the Status of Disabled People
Youth Commission
Equality Drafting Legislation Unit
RESOURCES
AND BUDGET
The SA Human Rights Commission
The Commission for Gender Equality
The Office on the Status of Women
Office on the Status of Disabled People
The Youth Commission
LIFE
CONSTITUTIONAL
OBLIGATIONS
Everyone has a right to life
INTERNATIONAL
OBLIGATIONS
Our international obligations are guided by:
Article 3 of The Universal Declaration of Human Rights
Article 6 of The International Covenant on Civil and Political Rights, and the optional protocol dealing with The Abolition of The Death Penalty
Article 4 of The African Charter of Human and Peoples' Rights
WHAT HAS BEEN DONE
POLICY
Government policy seeks to:
Curtail the power of the state to take away human life in the course of the administration of justice Curtail the power of private people to kill one another Acknowledge the duty of the state to protect human life.
The Constitutional Court has interpreted the Constitution to mean that the death penalty is unconstitutional.
LEGISLATION
National legislation has been passed to give effect to the decision of the Constitutional Court regarding the abolition of the death penalty. National legislation also makes provision for minimum sentences for serious crimes.
ADMINISTRATIVE
STEPS TAKEN
Government is in the process of reviewing the sections in the Criminal Procedure Act that deal with the use of lethal force in making arrests to bring them in line with the Constitution.
The Code of Conduct and the training manual for police officials specifically discourages the use of lethal force in making arrests.
FURTHER CHALLENGES
The general lack of public acceptance of the abolition of the death penalty
An urgent need to improve the effectiveness of the justice process as a deterrent to crime, particularly violent crime
ADDRESSING THE CHALLENGES
Human rights education that focuses on the right to life
Completing the review of the Criminal
Procedure Act
Implementation of the National Crime
Prevention Strategy
The development and implementation of a Charter of Victims' Rights
MONITORING AND IMPLEMENTATION
BODIES
The Department of Correctional Services
The Department of Defence
The Department of Justice
The Department of Safety and Security
The Department of Welfare and Population Development
The Department of Health (Reproductive issues)
The Independent Complaints Directorate
The National Intelligence Agency
The Integrated Justice System (IJS) with data capturing and a monitoring system to address case backlogs
The Inspecting Judge to address complaints from detainees
The South African Human Rights Commission
The Commission for Gender Equality
The Youth Commission
The Office on the Status of Women
RESOURCES
AND BUDGET
The National Crime Prevention Strategy funding
The budgets of:
The South African Human Rights Commission
The Commission for Gender Equality
The Youth Commission
The Office on the Status of Women
The relevant government departments and agencies
The private sector and civil society
FREEDOM AND SECURITY OF THE PERSON
CONSTITUTIONAL
OBLIGATIONS
Everyone has the right not to:
be deprived of their freedom without good reasons
be detained without a fair trial
be tortured
be threatened or punished in a cruel, inhuman or degrading way
suffer violence from public or private sources
INTERNATIONAL
OBLIGATIONS
Our international obligations are guided by:
Articles 3 and 5 of The Universal Declaration of Human Rights and the relevant articles of the International Covenants
The Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment
Article 6 of The African Charter
WHAT HAS BEEN DONE
POLICY
Government policies aim to:
combat crime so that everyone is safe and secure balance the rights of victims with the rights of people who are accused of crimes enable people to have control of their own bodies eliminate violence against women and children
A National Crime Prevention Strategy (NCPS) document was prepared by an inter-departmental team of the Departments of Correctional Services, Defence, Intelligence, Justice, Safety and Security and Welfare and Population Development. The objectives are to:
Establish a comprehensive policy framework to enable the government to address crime in a coordinated and focused way that draws on the resources of all government agencies, as well as civil society Promote a shared understanding and common vision of how the whole nation will tackle crime at national, provincial and local levels Develop a set of national programmes to kick start and to focus the efforts of various government departments in delivering quality services and solving the problems that lead to high crime levels Maximise civil society's participation in prevention
Create a dedicated and integrated crime prevention capacity, that can conduct ongoing research and evaluation of campaigns and also facilitate effective crime prevention programmes at national, provincial and local levels
The Department of Justice's Justice Vision 2000 policy sets out nine strategies relating to crime, safety and security. It aims to develop:
Policies that promote security and safety for everyone
An efficient and effective national prosecutorial service
An appropriate bail policy
A comprehensive, uniform and flexible sentencing policy
A parole policy that reflects:
the seriousness of the crime
the nature of the sentence
A crime prevention policy that addresses serious offences effectively, working with other government departments and agencies
A policy that maximises the co-operation of witnesses and victims with the criminal justice system, and at the same time, is sensitive to their needs and safety
A system of justice that addresses the particular circumstances of vulnerable groups like:
women
children
victims of violence
and uses a multifaceted approach that addresses attitudes towards violence and the causes and the consequences of violence
A juvenile justice system that conforms to the Constitution and international human rights norms, and also takes into account the kinds of crimes that juveniles commit
The 1996 Annual Plan of the South African Police Service also outlines objectives for safety and security.
A Project Committee on Sentencing has approved two issue papers dealing with the plight of victims of crime.
Inter-sectoral policy guidelines for handling victims of sexual offences were developed in 1997.
LEGISLATION
The Investigation of Serious Economic Offences Amendment Act of 1995
The Criminal Procedure Second Amendment Act of 1995
The Interception and Monitoring Prohibition Amendment Act of 1995
The Hague Convention on the Civil Aspects of International Child Abduction Act of 1996
The International Co-operation in Criminal Matters Act of 1996
The Proceeds of Crime Act of 1996
The Choice on the Termination of Pregnancy Act of 1996
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