PRESENTATION TO THE PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT, 14 AUGUST 2013

South African Human Rights Commission Bill

Introduction

The South African Human Rights Commission (SAHRC or ‘Commission’) welcomes the long-awaited amendments to the Human Rights Commission Act 54/1994 that have now been placed before Parliament in the form of the South African Human Rights Commission Bill.

The SAHRC has interacted with the Department of Justice and Constitutional Development (the Department) and has had the opportunity on three occasions to submit comments on previous drafts of this bill.

A number of these suggestions have been taken into accountThis presentation will focus on:

those previous submissions that were not accepted by the Department Matters raised by the Committee during deliberations on the Bill. Matters raised by the ICC Sub-committee on Accreditation

Guiding principles

Constitution of the Republic of South Africa, 1996 The need to align the HRC Act with the 1996 Constitution

The Paris Principles set out what a fully functioning NHRI is and identifies six main criteria that these institutions should meet to be successful: A broad mandate, based on universal human rights standards; Autonomy from government; Independence guaranteed by statute or constitution; Pluralism including through membership and/or effective cooperation; Adequate resources; and Adequate powers of investigation.

The following information is taken from the UNDP-OHCHR Toolkit for collaboration with National Human Rights Institutions (published December 2010 by the United Nations Development Programme and the Office of the High Commissioner for Human Rights).

Definitions section

"Commission" means the South African Human Rights Commission referred to in sections 181(1)(b) and 184 of the Constitution ; add the words “and is composed of members appointed in terms of section 5”

Change the definition of ‘Member’ It will create greater clarity to use the word Commissioner throughout the

Bill rather than the word member. Add definition for ‘Speaker’

“Speaker means the speaker of Parliament referred to in section 52 of the Constitution .”

the suggested amendment is linked to the amendment suggested by the SAHRC in clause 4 – Independence and Impartiality

It is therefore only required if the clause 4 amendment is accepted

Definitions continued…

Definition of “human rights” Remove the word ‘relevant’

Definition of ‘organ of state’ The SAHRC agrees that the definition used in section 239 of the

constitution should be used in the Bill

Seat of the Commission clause 3

The SAHRC has previously requested the Department to replace the word ‘President’ with ‘Commission’.

Should this ever change in future, then this ought to be a decision of the Commission.

It further promotes the principles of independence for the Commission to determine by itself where its seat shall be.

“3. (1) The seat of the Commission must be determined by the

President.(2) The Commission may establish such offices as it may consider

necessary to enable it to exercise its powers and to perform its functions conferred on or assigned to it by the Constitution, this Act or any other law.”

Independence and impartiality clause 4

The SAHRC supports the retention of clause 4 (1)(a) The key hallmark of a national human rights institution is that it is

independent and therefore it is important that this is stated clearly and unambiguously in the act.

“4. (1) (a) The Commission is independent.”

Ad sub clause 4(1)(b)(ii):(i) Requires a greater deal of clarity with regards to the

interests members may hold outside that of the position they hold as members.

(ii) Should members be entitled to hold business interests then the Bill should specifically provide therefore and that they must declare such interests to the Speaker.

Composition of the Commission clause 5

The SAHRC supports the retention of 11 commissioners, of which, seven should be full-time and 4 may be either full-time or part-time.

In the alternative, the SAHRC would support 8 full time commissioners.

Staggering of appointments - clause 5

The SAHRC does not support the staggering of appointment of commissioners

The institutional memory of the Commission should reside within the secretariat.

“5(2)(b) The term of office of the full-time members may not expire simultaneously.”

Appointment of acting commissioners - clause 5

The SAHRC does not support the appointment of acting commissioners

It is proposed that clauses 5(5) and 5(6) be removed.

Political affiliations of commissioners – clause 5

Parliament should deal with this matterThe SAHRC agrees that once a person is appointed as an

office bearer or accepts nomination, then that person cannot be a commissioner

The SAHRC is of the view that once the Electoral Commission publishes the list of political party nominees, that at this point the Commissioner should step down.

Chairperson and deputy Chairperson clause 6

The SAHRC does not have consensus on this matterMany arguments can be put forward for the President,

the National Assembly or commissioners themselves to determine the Chairperson and deputy chairperson

Powers duties and functions of Chairperson, deputy Chairperson and other members clause 7

Clause 7(5) which states that the Chairperson is the the executive authority is welcomed.

Vacancies in Commission - clause 8

The SAHRC supports the provision that vacancies in the Commission must be filled within a period of six months. “(3) A vacancy in the Commission must be filled as soon as practicable in accordance with section

193(4) and (5) of the Constitution, but within a maximum period of six months after the vacancy occurred.” ICC SCA recommendationThe SCA emphasizes the requirement for a clear, transparent and participatory

process that ensures merit based selection, and promotes the independence of, and public confidence in, the senior leadership of a national human rights institution. It encourages the SAHRC to advocate for the formalization of these aspects of the selection process in relevant legislation, regulations or binding administrative guidelines, and for its subsequent application in practice. This should include requirements to: - Assess applicants on the basis of pre-determined, objective and publicly available criteria; - Publicize vacancies; - Maximize the number of potential candidates from a wide range of societal groups; and - Promote broad consultation and / or participation in the application, screening and selection

process.

Remuneration and allowances of members - clause 9

The SAHRC proposes that that the word "President" be substituted with the words: "The Independent Commission for the Remuneration of Public Office Bearers".

The SAHRC makes this submission within the context of the Remuneration Bill

Commission may approach President, National Assembly or other relevant body – clause 13

The SAHRC supports the inclusion of a reference to the National Council of Provinces (NCOP) “13. The Commission may, at any time, approach the President,

the National Assembly or other relevant body with regard to any matter relating to the exercising of its powers or the performance of its functions.”

Powers and functions of the Commission – Clause14

Replace 14(1)(a)(i) and (ii) with: “(i) promote respect for human rights and a culture of human rights; (ii) promote the protection, development and attainment of human

rights; (iii) monitor and assess the observance of human rights in the

Republic; (iv) annually require organs of state to provide it with information on

the measures that they have taken towards the realisation of the rights in the Bill of Rights concerning, inter alia, housing, health-care, food, water, social security, education and the environment”.

The numbering of the remaining three sub-clauses should be changed accordingly.

Power & functions cont….

ICC SCA recommendations (November 2012) Encouraging ratification or accession to international human rights

instruments – compliance with Paris Principles (c)(In this area, Paris Principles (e) could also have more direct

compliance, cooperation with the UN system, etc. .....)Clause 14(b)(6) Monitoring places of detention Multiple independent agencies & need to ratify and implement

OPCATThe SAHRC Bill should secure access to all places where there is any

alleged violation of human rights (clause 14(3)

Investigations by the Commission – clause 16

In clause 16(1)(a) after the word “investigation” add the words “or public enquiry”. The clause currently reads: “16. (1) Pursuant to the provisions of section 14(3) the

Commission may, in order to enable it to exercise its powers and perform its functions—

(a) conduct or cause to be conducted any investigation that is necessary for that purpose; …”

Investigations by the Commission - clause 16 cont.

The SAHRC proposals that after subsection (9) a new sub-section is added which reads as follows “(10) A public enquiry would address a systemic violation of rights

within the public realm or that of a particular public authority as identified by the Commission in a ‘Terms of Reference’ that will articulate the purpose, aim and scope of the public inquiry and on the rules of procedure that will be applied; an enquiry will be followed by the publication of a public report and, if the Commission so requires, it may request any person or organisation to respond to its report within a specified period of time.”

Entering and search of premises and attachment and removal of articles - clause 17

The SAHRC supports the continued inclusion of this clause in the Bill.

Clause 17 cont…

S(17)(8)(b) should be deleted as it is unnecessarily wide.

There is an error in the sub-clause reference: should read S(17)(6)(b).

The concern is that in this instance there would be no procedural requirement placed on the Commission (or its staff/appointee) to specify in advance of commencing the search and seizure what the search and seizure relates to.

Reports by Commission – clause 19

Add, at the end of (1) “and shall submit its annual public accounts to the relevant committee of the National Assembly”

Does not support reports via Office of the SpeakerThe NA should facilitate the establishment of a joint

committee to discuss the S184(3) report. Alternatively, the Justice PC should facilitate the joint meeting with other committees

This does not prevent the Commission from engaging directly with certain committees or calling a briefing meeting with relevant committees.

Reports by commission cont. ..

ICC SCA Recommendation8. Recommendations of the CommissionThere are no provisions in the new Constitution or the Human Rights Commission Act requiring individuals, government or public bodies to formally respond to its recommendations and reports. The SCA notes with appreciation that the SAHRC has raised this issue with the Department of Justice & Constitutional Development in its submissions on legislative amendments, and recommends that the SAHRC continue to advocate for a legislative requirement that government bodies and others respond to the recommendations of the Commission.

The SCA refers the Commission to General Observation1.6.

Staff of the Commission – clause 20

In 20(3) after the first words “The chief executive officer”, add “in accordance with a budget prepared and approved in terms of the provisions of the PFMA pertaining to its Schedule 1”

Clause 20(5) should indicate that staff remuneration, allowances and other employment benefits are aligned / follow the public service

In 20(7) delete the words “in consultation with the Minister of Finance”

Accountability, expenditure and finances – Clause 21

In (1) before the word “responsibilities”, add “financial management”

.

Thank you