UPR – Third Report of South Africa

On May 10, 2017, Mr. John Jeffery, Deputy Minister at the Department of Justice and Constitutional Development of South Africa, presented the third national report of the Universal Periodic Review of South Africa on the developments regarding the situation of human rights and fundamental freedoms and implementation of previous recommendations since the beginning of the 2nd UPR cycle in 2012. During its UPR held in September 2012, South Africa accepted 152 recommendations. The national report draws on information by various Government Departments and NGOs.

Presentation of the National Report

During the presentation of the third national report, Mr. John Jeffery outlined the progress made with regards to implementation of previous UPR recommendations and delineated major challenges faced by the government in the promotion and protection of human rights. Since the advent of democracy in South Africa in 1994, the Government has been pursuing the realization of human rights and fundamental freedoms for all by, inter alia, addressing inequality, poverty and unemployment.

Constitutional, legislative and policy measures: The South African Constitution, which took effect on 4 February 1997, provides for both civil and political rights and economic, social and cultural rights, all of which are justiciable in the courts. The recently introduced National Development Plan (NDP): Vision 2030 aims to eliminate poverty and reduce inequality by 2030¹. The government has introduced various policy measures since its last UPR and Parliament has passed 27 relevant pieces of legislation for the promotion and protection of human rights, inter alia,

 Torture: The Prevention and Combating of Torture of Persons Act (2013)

 Human Trafficking: The Prevention and Combating of Trafficking in Persons Act (2013)

 Privacy: The Protection of Personal Information Act (2013)

 Human rights infrastructure: The Government aims to include civil society input in programmes, legislation, policy, and general consultation.

Substantial resources have been invested into housing and human settlement development. The Spatial Planning and Land Use Management Act (2013) was passed to redress the spatial legacy of apartheid by promoting integrated communities across racial and class divisions. The Government continues to provide housing and amenities to the most vulnerable groups.

The reform of and investment into the education sector has fostered a significant increase in access to education across population groups, notably in school attendance and educational attainment, and has improved school infrastructure and facilities.

South Africa has achieved improvements in various areas of health care such as the extension of life expectancy rates, while facing deep inequalities rooted in apartheid and the burden of communicable diseases such as HIV/AIDS and TB, high maternal and child mortality rates, increase in non-communicable diseases and high rates of violence, injuries and trauma. South Africa aims to achieve Universal Health Coverage by 2030 through the National Health Insurance (NHI) policy.

Foreign nationals migrating to South Africa enjoy most rights enshrined in the Constitution. South Africa responded to attacks on foreign nationals, which resulted in the loss of life and property damage, with condemnation and in the form of law enforcement. Among other measures, the Government, in cooperation with (civil society) stakeholders, has developed a draft National Action Plan (NAP) to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance. The Prevention and Combating of Hate Crimes and Hate Speech Bill has been approved for public comment in October 2016.

Gender based and sexual violence, especially against children, remains a significant challenge. To reduce its occurrence and to provide services to victims, Thuthuzela Care Centres (TCC) and Family Violence, Child Protection and Sexual Offences Units have been established. In 2014, the Government finalized a National Strategy for Inter-sectoral Management of Sexual Offences.

Promotion and protection of human rights: Major challenges include the decriminalization of sex work, the rights of mining-affected communities, infant and maternal mortality, statelessness, and early registration of birth. While South Africa has been able to alleviate poverty and improve living standards, the level of unemployment and poverty among vulnerable groups remains disproportionately high. Apartheid’s legacy is reflected in high poverty and inequality rates.

Compilation of the Office of the United Nations High Commissioner for Human Rights

Such compilation draws on reports of treaty bodies and special procedures and other relevant UN documents. The UN country team noted the ratification by South Africa of the ICESCR in 2015 and of the ILO Domestic Workers Convention in 2013. It encouraged South Africa to withdraw its declaration to the Covenant submitting the right to education to progressive effect within the framework of its national education policy and available resources. In 2016, the Secretary-General regretted the decision of the Government to withdraw from the Rome Statute of the International Criminal Court and hoped for reconsideration.

National human rights framework: The Committee on the Elimination of Racial Discrimination (CERD) welcomed the enactment of the South African Human Rights Commission Act 40 of 201316 and recommended its implementation. The Special Rapporteur on violence against women recommended that South Africa strengthen and ensure adequate resources for State institutions to carry out their mandates with respect to gender equality and violence against women.

OHCHR assessment of the implementation of the recommendations and the international human rights obligations

Equality and non-discrimination: The UNHCR commended the Government for having prepared a draft national action plan against racism, racial discrimination, xenophobia and related intolerance and noted that it had been widely circulated for consultation. UNHCR recommended that South Africa include xenophobia. CERD welcomed the Prevention and Combating of Hate Crimes and Hate Speech Bill and recommended South Africa to expedite its enactment. The prevalence of discrimination, xenophobia and racism against non-citizens, including refugees, asylum seekers and migrants, had caused numerous violent attacks leading to deaths and injuries as well as to large-scale displacement and property damage.

Development, the environment, and business and human rights: The CRC also was concerned that activities of business enterprise were detrimental to the rights of the child, owing to, inter alia, environmental pollution and child labor.

Civil and political rights

Right to life, liberty and security of person: CERD was alarmed by reports of cases of abductions, killings and dismemberments of persons with albinism. The Human Rights Committee expressed concern about excessive, disproportionate, and often lethal force by law enforcement officials in response to public protests. The lack of progress of the investigation into the Marikana incident was criticized. This Committee was also concerned about poor conditions of imprisonment and grave forms of ill-treatment against detainees, which had led to deaths. Undocumented migrants had been detained for prolonged periods without a warrant.

Administration of justice: While CERD welcomed the establishment of “equality courts” to end racial discrimination, it was concerned about their underutilization due to lack of public awareness. The Human Rights Committee was concerned that the recommendations of the Truth and Reconciliation Commission had not been fully implemented.

Fundamental freedoms and the right to participate in public and political life: UNESCO noted that the Protection of State Information Bill in its current form could undermine the right to access to information and freedom of expression. The Human Rights Committee expressed concern about threats, intimidation, harassment, excessive use of force and physical attacks by private individuals and police forces against human rights defenders.

Prohibition of all forms of slavery: UNHCR welcomed the enactment in 2013 of the Prevention and Combating of Trafficking in Persons Act. The Human Rights Committee and the country team recommended the establishment a nationwide identification and referral system for victims, as well as the need of national policy framework and plan of action on trafficking. The CRC expressed concern that criminal law did not address all acts and activities relating to the sale of children as defined in the relevant OP-CRC.

Right to privacy: The Human Rights Committee was concerned about the relatively low threshold for and weak safeguards against surveillance.

Economic, social and cultural rights

Right to work and to just and favorable conditions of work: The Human Rights Committee commended the Labour Relations Amendment Act of 2014 but remained concerned that migrant workers in the mining industry were victims of exploitative labor conditions.
Right to social security: The country team observed that South Africa had introduced a policy to reduce the cost of living of the poor. CRC was concerned that access to social security benefits for children was impeded and insufficient.

Right to an adequate standard of living: CERD was concerned about multilayered discrimination faced by black and marginalized ethnic women and girls, who were strongly affected by poverty and lack of access to basic services. The country team reported that children were disproportionately affected by poverty. CRC was concerned about children experiencing food insecurity and about lacking access to water and sanitation, which exposed them to ill-health and sexual violence.

Right to health: CRC was concerned about disparate health-care provision between rural and urban areas and about the low quality of health-care services. Although HIV-related deaths had decreased, the rate of deaths caused by tuberculosis among HIV-positive persons remained high. Gender inequalities and stigma underpinning HIV remain significant challenges.

Right to education: While 20 percent of South Africa’s budget had been allocated to education, CERD and UNESCO were concerned about unequal access to quality education and educational resources and the failure to alleviate racial and xenophobic tensions and barriers through educational programs. The country team noted a significant decline in attendance at secondary school level the effects on girls of teenage pregnancy.

Rights of specific persons or groups

Women: The country team reported that the Women’s Empowerment and Gender Equality Bill had not been enacted. In addition, the National Council against Gender-based Violence and the multi-sectoral national strategic plan had been suspended. The Special Rapporteur on violence against women recommended repealing any remaining legal instruments that discriminated against women regarding marriage and family relations. Gender-based and domestic violence remained a serious problem and was often carried out with impunity.

Children: CERD and CRC were concerned at the persistence of harmful cultural or traditional practices, especially against women and girls. The CRC was deeply concerned at the low minimum age for marriage and different conditions for marriages for girls and boys under 18 years of age. The Human Rights Committee was concerned at the non-prohibition, traditional acceptance, and wide practice of corporal punishment in the home and its practice in some schools. The same Committee was concerned at the prevalence of child sex tourism.

Persons with disabilities: CRC recommended that South Africa strengthen data collection on children with disabilities to develop effective policy responses.

Indigenous peoples: CERD expressed concern at the continued suffering by indigenous peoples from extreme poverty and marginalization as well as from discrimination, inter alia, in the areas of language, education and land redistribution. The Human Rights Committee recommended the strengthened processing of land restitution claims and introduction of legislative measures to adequately address the issue of the dispossession of the lands of indigenous peoples prior to 1913.

Migrants, refugees and asylum seekers: UNHCR noted that the high numbers of asylum applications and occurring misuse of the asylum system imperiled fairness and efficiency of that system. CRC recommended that South Africa improve child-protection services to migrant, asylum-seeking and refugee children. UNHCR noted that new immigration regulations and legislation could be detrimental to entrance, access to asylum procedures, and certain rights for asylum seekers, including the right to work.

Stateless persons: CRC recommended that South Africa confer nationality to all children who were stateless or at risk of becoming stateless. UNHCR recommended that South Africa ensure reliable statistics on stateless persons and that it provide administrative assistance.

Summary of stakeholders’ submissions on South Africa drafted by the OHCHR

The summary was prepared by the OHCHR taking into consideration the contributions by the national human rights institution and 30 stakeholders’ submissions to the UPR.

Information provided by South Africa’s national human rights institution

The declaration by the Government to the ICESCR indicating that the right to education would be given progressive effect was in contradiction to the Constitution and court judgements. Access to education was jeopardized by high drop-out rates, weak infrastructure, poor quality of education and the inefficient usage of resources, particularly in rural areas.

Negative attitudes, violence and xenophobia towards migrants, refugees and asylum seekers remained a significant challenge. Common law continued to permit corporal punishment in the home. Despite legislation criminalizing corporal punishment in schools, the practice remained prevalent. Unequal access to justice and systemic violations in detention facilities prevailed². The quality and availability of state healthcare services remained disparate.

Statistics on persons with disabilities lacked consistency and coherence. Indigenous communities had faced violations, including of their rights to equality, language, education and land redistribution; and the lack of recognition of the indigenous communities and their respective leadership.

Information provided by other stakeholders

Several stakeholders urged South Africa to become a party to additional human rights instruments including: OP-CAT and a monitoring system for all detention facilities; ICRMW, ICPPED; OP-ICESCR; OP-CRC-IC; the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.

Equality and non-discrimination: Several organizations highlighted that colored people experience persistent racial discrimination rooted in apartheid. They also underlined ongoing incidents of violence against non-nationals and problematic police responses, including raids and mass arrests of individuals in alleged high crime areas, which have high numbers of foreigners. Other organizations criticized that an amendment to the Births and Deaths Registration Act rendered birth registrations after 30 days more difficult to access, which would disproportionately affect children experiencing social exclusion.

Stakeholders’ assessment of the implementation of the recommendations and the international human rights obligations

Civil and Political Rights

Right to life, liberty and security of the person: urgent and substantial redress was needed within the South African Police Service (SAPS) owing to, inter alia, excessive use of force. In this context, several organizations referred to the Marikana incident in 2012, during which lethal force was used against peacefully protesting mineworkers and for which accountability remained absent. Several organizations noted that inhumane conditions in detention facilities prevailed and criticized the deficient prison oversight mechanism.

Administration of justice: The legal profession was considered unrepresentative of the majority of the people, especially in view of the underrepresentation of women and scarcity of lawyers in townships and rural areas. Despite the creation of Equality Courts, persons with disabilities were considered to be confronted with barriers. One organization recommended swift implementation of the Truth and Reconciliation Commission’s recommendations for reparation for apartheid era torture victims.

Freedom of expression and assembly had been undermined by violations against freedom of press, inter alia, through surveillance, regulation of the internet, obstacles to NGO registration, harassment, arrests, and that civil society, journalists and human rights defenders faced threats to their security and liberty of person, including through excessive and even lethal force to disperse protests.

Economic, Social and Cultural Rights

Right to work and to just and favorable conditions of work: employment opportunities were extremely limited outside of urban centers, thereby leading to labor migration to urban centers.

Right to an adequate standard of living: Despite efforts to address entrenched poverty and social inequality, South Africa remained poverty stricken and shaped by high inequality. Large parts pf the population remained food insecure and half of the urban population lived in townships or informal housing.

Right to health: HIV/AIDS remained substantial challenges. Infant and maternal mortality rates remained alarmingly high and child health was negatively affected by poverty, food insecurity, inadequate housing, water and sanitation. Sexual and reproductive health education remained inadequate. The healthcare system remained discriminatory and unresponsive to the needs of intersex and transgender persons and hardly accessible to foreign nationals.

Right to education: In spite of its heavy investment in education, quality of education and facilities remained largely absent – especially for black South Africans. Dropout rates remained high. Among other recommendations, South Africa was urged to facilitate access to secondary and tertiary education for the most marginalized groups.

Rights of specific persons or groups

Women: South Africa was urged to pursue legislative measures to address gaps in the normative framework for women’s rights and gender equality. Several organizations stated that violence against women, including domestic abuse, was widespread and that South Africa had extremely high rates of rape, including ‘corrective rape’, especially against lesbian women. Legislation did not yet adequately criminalize such crimes and cases of sexual offences are often rejected and seldom persecuted.

Children: Notwithstanding a strong legal framework, violence against children continued to be widespread. Corporal punishment remained socially accepted and legally permitted in the home. It was recommended that the Government set 18 as the minimum age of marriage without exception and criminalize “forced marriage”, “child marriage”, and “Ukuthwala”.

Persons with disabilities: While the Government had introduced relevant legislative and policy measures, implementation and monitoring of the situation of persons with disabilities was insufficient.

Migrants, refugees and asylum seekers: It was noted that undocumented migrants continued to face exploitation and that procedures for recognizing the refugee status remained problematic.

Stateless persons: the lack of adequate mechanisms to identify statelessness was criticized.

Interactive dialogue during the 27th Session of the UPR

During the presentation of the third national report of South Africa, H.E. Mr. John Jeffery presented the improvements achieved by the country in the implementation of the recommendations accepted after the 2012 UPR session. Outlining the progress made in the period under review, Mr. John Jeffery asserted that South Africa has been able to alleviate poverty, strengthen socioeconomic rights, improve living standards and healthcare infrastructure, decrease maternal and child morality, and decrease the number of HIV positive persons. He noted that economic growth remains weak in South Africa and pinpointed the challenge of doing more within existing budgetary constraints and less funding. Poverty and inequality and a lack of jobs endure, reflecting the legacy of apartheid. In the light of this, the National Development Plan aims at improving the situation of the poor and marginalized and at eliminating poverty by 2030.

Interventions followed during which Member States, after welcoming the delegation of South Africa and commending the efforts made to implement previous UPR recommendations and to improve the overall human rights situation, made a number of recommendations.

Several Member States recommended South Africa to take all necessary measures to combat gender violence; to ensure full conformity with CRC with regards to birth registration; and to counteract child marriage by setting the minimum age for marriage under 18 without exception. South Africa was also asked to guarantee equal access to and quality of education for all groups of society regardless of their background and residence. South Africa was urged to strengthen the rights of migrants, including enforce measures to prevent violence against and to improve police response to non-citizens. Furthermore, a number of Member States recommended to South Africa to strengthen LGBTI rights and prevent violations, to cease excessive and sometimes lethal force by law enforcement officials, and to ensure that its law enforcement complies with UN standards. Finally, Member States asked South Africa to ratify OP-CAT, the convention on statelessness, and the Convention on Enforced Disappearance, and to reconsider its decision to withdraw from the ICC.

Responding to some of the remarks and recommendations made by Member States, the delegation of South Africa assured that the Government was doing as much as it can to combat gender-based violence by providing services, treatment, and specialized police units, among other measures. With regards to human trafficking, the Prevention and Combating of Trafficking in Persons Act (2013) criminalizes trafficking for the purpose of exploitation. South Africa is pursuing a national policy framework to implement the act. The challenge of cultural practices remains. The Government is planning to accede to OP-CAT but the establishment of respective mechanisms is presenting challenges. Any form of discrimination against LGBTI is constitutionally prohibited. Moreover, South Africa has established Equality Courts accessible to all. Prejudice prevalent among the public is a broader problem. The Government is not aware of many cases of violations against persons with albinism but the issue has been included in the Hate Crime Bill. According to the delegation, people of mixed race are included in affirmative action policy.

Regarding birth registration, early registration (EBR) is not entrenched in SA for historical reason as only white South Africans were recorded during apartheid. Since 2010, the Government has intensified efforts to end late registration of birth (LRB) by rendering EBR binding and imposing penalties for LRB. It has introduced measures to facilitate EBR, including an online registration system. The delegation reiterated the country’s commitment to assist vulnerable people such as refugees, asylum seekers, and migrants and referred to its White and Green Papers on International Migration. Regarding policing of gatherings, the delegation took up the issue of violent responses to protests, including lethal force used at the Marikana incident. It underlined that a commission of inquiry had been established and experts appointed to make recommendations, to revise and amend police response to such events. Pronouncing its concern about corruption, the delegation noted that an increasing number of measures are in place to combat it, such as the State Information Bill and the Protected Disclosure Act that provides for, inter alia, the protection of whistleblowers.

Emphasizing that the country was treating further issues raised – including statelessness, teenage pregnancy, sexual violence at schools, the right to education, and healthcare – with the seriousness they deserve, the delegation outlined taken relevant measures and progress.

To conclude his presentation, H.E. Mr. Jeffery thanked the delegations and the HRC for their input, commendations, and recommendations, and all persons present for their attention. The delegation will be looking very carefully at all recommendations and is looking forward to the continuation of the process.

Adoption of the Draft Report of the Working Group on the Universal Periodic Review

On Friday May 12, 2017, the Working Group on the Universal Periodic Review adopted the Report on South Africa. The delegation of South Africa will examine the 243 recommendations and will provide its responses no later than the thirty-sixth session of the Human Rights Council in September 2017.

1. It aims to do so in particular by pursuing the following priority outcomes: education, health, safety and security, economic growth and employment, skills development, infrastructure, rural development, human settlements, local government, environment, international relations, public sector, social protection, nation-building and social cohesion.

2. Such violations included “allegations of abuse and corruption; the use of isolation; overcrowding; detention of unaccompanied children; continued detention of undocumented migrants beyond the prescribed periods; and the lack of provision for tuberculosis testing and isolation of those infected and of voluntary counselling and testing for HIV/AIDS”.

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