DOCUMENTS

The problem with the SAHRC

Glynnis Breytenbach says the commission is running with the mob, not pursuing its actual mandate

WE NEED TO TALK ABOUT THE HUMAN RIGHTS COMMISSION

The recent death of 13-year-old Enoch Mpianzi at a school orientation camp is a tragedy that should never have been allowed to happen. Enoch’s grieving family and his traumatised classmates deserve answers, and those responsible for the circumstances that led to his death must be held accountable after a thorough and independent investigation.

But the moment the Buang Jones, Acting Legal Head of the South African Human Rights Commission (SAHRC) got involved, the chances of a fair and proper investigation went up in smoke. He, (on behalf of the SAHRC) blatantly violated a crime scene, drew hasty conclusions (again) and shamelessly encouraged vigilante justice (again). 

When Jones on Tuesday last week attempted to force his way into the Nyati Bush Breaks Lodge, he compromised the site of police investigations, and acted more like a self-absorbed and exploitative opportunist, instead of a person entrusted with protecting the public interest.

Unfortunately, the SAHRC has a history of botched and biased investigations and findings. Mpianzi is but one victim of this lack of integrity.

But the real indictment of the SAHRC is that its sensation-seeking in prominent cases has come at the expense of a crucial component of its mandate, which has been almost entirely neglected.  This role is to monitor and advise government on the implementation of socio-economic rights country-wide, especially those where government failures violate basic human rights.

Access to water is a basic human right.  So it is legitimate to ask what the SAHRC has been doing about the violation of this right countrywide.

For example, severe water shortages in QwaQwa in the Free State have led to the death of an 8-year-old girl. Is the SAHRC investigating this?  And if so, are they doing it with the same vigour  with which they are pursuing their hand-picked, often racially charged cases?

Year-after-year, scores of deaths occur due to botched circumcisions.  On this matter, the Commission is deafeningly silent. Is it because these cases are not prominent enough;  or that they do not serve the race agenda of the ANC, their Twitter bots and populist supporters?

Just two months ago, ten babies died of Klebsiella infection in a paediatric ward at a Thembisa hospital.  Has the Human Rights Commission visited that site in a blaze of publicity?  Has it asked the crucial questions pertaining to the human rights of the parents who lost their babies, not to mention the children who went to a government hospital to die?

Until major violations of Human Rights, caused by government cruelty, negligence or incapacity are thoroughly investigated, the SAHRC’s credibility will remain deeply compromised.

Fight for all South Africans

At the establishment of the SAHRC in October 1995, it was envisioned that this institution should be committed to the “protection of human rights for everyone without fear or favour”. It draws its mandate from the South African Constitution by way of the Human Rights Commission Act of 1994. In its own words, the HRC is “an independent institution … [that] is not a political party and does not support or advance any view of any political party”.

But, as in so many other cases, the vision of an independent watchdog fearlessly defending the rights of all South Africans, has faded into a cloud of bias, politically-tainted decisions and surrendered to a wave of race-populism. Instead of due process, thorough investigations and acting on behalf of all South Africans, the SAHRC can now be accused to facilitating “mob justice”  --  certainly if the behaviour and actions of Jones are anything to go by.

This tendency is present in the tragic death of Enoch Mpianzi. The family has lost a child in a manner that is both senseless and tragic. There can be no question that justice needs to prevail, and in this instance, this requires those responsible for the circumstances that led to Enoch’s death to be held accountable.

Posturing, grand-standing and mob-mobilisation cannot help us in identifying the root causes, to ensure that such tragedies do not happen again.

The SAHRC should act decisively against Jones – this is after all not the first time Jones, and by implication, the SAHRC, has acted so disgracefully.

But Jones is not, by any means, the only member of the SAHRC whose conduct has decimated the credibility and impartiality of this crucial Chapter 9 institution.

One only has to look at overtly political cases to understand this.

Take the case of EFF leader Julius Malema. Complaints were laid at the Commission after Malema used slogans such as “kill the Boer” and that he was “not calling for the slaughter of whites, yet”.

In March 2019, the SAHRC found that Malema’s statements did not constitute hate speech. In reaching its decision the Commission made the preposterous argument that whether something constitutes hate speech or racism “will depend on whether [they are] uttered by a white person or a black person and against a white person or a black person”.  “We must take our societal and historical context into account when we try to determine whether something amounts to racism.”

At least the SAHRC was honest, which enables us to understand Jones’s statements and actions more clearly.  What they were saying is this: A perceived violation by a white person against a black person is a legitimate focus of their investigation and censure.  Any alleged violation by a black person, either against other black people or against white people “must be seen in our historical context”  --  an excuse to exonerate people for human rights violations on the basis of their race.

What an utter miscarriage of justice this is. The Commission’s mandate is to ensure the equal application of constitutional criteria, not a different set for different races. Instead of objectively looking at the facts in the Malema case, they openly admitted to exonerating him because he is a black man and because his offense was aimed at a white minority.

Compare this with the Eben Etzebeth case.

In August 2019, Springbok rugby player Eben Etzebeth was accused of attacking two people in Seabreeze in Langebaan and using racial slurs against them. The SAHRC immediately started an investigation, in which Etzebeth gave his full cooperation.

Upon visiting the Langebaan community shortly after the reported incident, Jones reportedly told the community they want to “make an example of Etzebeth” and that they “want to show other racists” that using racial slurs is wrong.  He also said that “Etzebeth is used to getting away with murder”.

Subsequently, the SAHRC brought Etzebeth before the Equality Court and accused him of racism, despite the CEO of the SAHRC, Adv. Tseliso Thipanyane, warning that they do not have enough evidence to prove that Etzebeth used racist language. Media reports indicate the SAHRC was more concerned with “what the community of Langebaan would say” if they don’t pursue the matter than it was with the available facts and evidence.

Lack of action

We should therefore not be surprised that the Human Rights Watch, 2020 World Report, indicates that South Africa’s human rights track record continues to slip.  This should be a matter of great concern for every South African.

The watchdog set up to defend our rights is not only toothless, but it has also been captured and impounded in the ANC’s kennel, leaving ordinary South Africans profoundly vulnerable.

It is yet another tragic example of the devastation of “state capture”.

Rebuilding the integrity and credibility of our institutions will take decades.