Committee on the Elimination of Racial Discrimination

CERD/C/ZAF/CO/4-

Distr.: General 26 August 2016

Concluding observations on the fourth to eighth periodic reports of South Africa*

* Adopted by the Committee at its ninetieth session (2-26 August 2016).

1. The Committee considered the combined fourth to eighth periodic reports of South Africa (CERD/C/ZAF/4-8), submitted in one document, at its 2460th and 2461st meetings (CERD/C/SR. 2460, CERD/C/SR. 2461), held on 9 and 10 August 2016. At its 2476th meeting, held on 19 August 2016, it adopted the following concluding observations.

A. Introduction

2. The Committee welcomes the submission of the combined fourth to eighth periodic reports of the State party. The Committee notes that the report was overdue. However, it appreciates that the report included developments on the implementation of the Convention and responses to concerns raised by the Committee in its previous concluding observations.

3. The Committee welcomes the open and constructive dialogue with the State party’s high-level delegation, and the additional information provided orally and in writing by the delegation in response to the questions and issues raised by the Committee during the dialogue. It further appreciates the efforts and struggles of the State party to eliminate the former apartheid structures and its institutionalized racism and strive towards a society free from racial discrimination.

B. Positive aspects

4. The Committee welcomes the adoption of the following legislative and policy measures:

(a) Enactment of the Prevention and Combating of Trafficking in Persons Act on 29 July 2013, which came into effect in August 2015;

(b) Enactment of the South African Human Rights Commission Act 40 of 2013 which strengthens the mandate of the Commission to monitor the implementation of and compliance with, international and regional human rights instruments;

(c) The Draft National Action Plan to combat Racism, Racial Discrimination, Xenophobia and Related Intolerance of 2015 which is undergoing public consultations in 2016;

(d) The Green Paper on the International Migration in South Africa of 21 June 2016 which analyses South Africa’s migration policy with a view towards reform.

5. The Committee also welcomes the State party’s ratification of the following international human rights instruments, since its last report:

(a) The Convention on the Rights of Persons with Disabilities and its Optional Protocol, on 30 November 2007;

(b) The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, on 24 September 2009;

(c) The International Covenant on Economic, Social and Cultural Rights, on 12 January 2015.

C. Concerns and recommendations

Statistical Data

6. The Committee appreciates the statistics provided by the State party, though it notes with concern that the classifications used to gather statistical data are from the former apartheid era. While noting concerns of the State party on preventing ethnic division through the gathering of statistical data, the Committee emphasizes that it needs a more exhaustive set of demographic statistics that may have been disaggregated in the manner specified in article 1, paragraph 1 of the Convention, including economic and social indicators. Statistical data is also needed on non-citizens in particular (art. 1).

7. The Committee reiterates its recommendation that the State party provide the Committee with comprehensive statistical data in its next report including economic and social indicators, in line with paragraphs 10 to 12 of its revised reporting guidelines (CERD/C/2007/1),its general recommendation No. 4 (1973) on reporting by States parties on the demographic composition of the population, and its general recommendation No.8 (1990) on self-identification, to enable the Committee to obtain an accurate view on the enjoyment of the rights in the Convention.

National Human Rights Institution

8. The Committee notes the work of the national human rights institution (NHRI) which is accredited “A” status by the Global Alliance of National Human Rights Institutions. However, the Committee is concerned that the State party has not implemented some of the recommendations proposed by the NHRI, which would strengthen the implementation of the Convention. The Committee is further concerned that the NHRI does not have sufficient budgetary resources to effectively carry out its mandate, as expanded by Act 40 of 2013 (art. 2).

9. Recalling its general recommendation no. 17 (1993) on the establishment of national institutions to facilitate implementation of the convention, the Committee recommends the State party implement recommendations of the NHRI to strengthen its realization of rights in the Convention. The Committee further recommends that the State party provide the NHRI with adequate financial resources to effectively execute its mandate.

Truth and Reconciliation Commission

10. The Committee notes information provided by the State party on the work of the Truth and Reconciliation Commission, and commends the Commission’s investigation of human rights violations committed during the apartheid era. However, the Committee emphasizes concern that the recommendations of the Commission have not been implemented fully, in particular in terms of prosecuting perpetrators and providing adequate reparations to victims (art. 3).

11. The Committee encourages the State party to investigate cases of violations of human rights committed during the apartheid era, prosecute perpetrators, and provide reparations to victims, in order to ensure accountability and end impunity.

Hate crime and hate speech legislation

12. The Committee is concerned about the lack of hate crime and hate speech legislation in the State party to effectively prosecute perpetrators, and deter further violations. The Committee is further concerned at the rise of hate crimes and hate speech in the State party including physical attacks against certain ethnic groups and non-citizens, discriminatory statements by State officials and politicians, and the increase in the use of media and the internet to propagate racist hate speech (arts. 2, 4, and 6).

13. The Committee welcomes the Prevention and Combatting of Hate Crimes and Hate Speech Bill and encourages the State party to ensure that this Bill is in accordance with the Convention; in particular its general recommendations no. 15 (1994) on article 4 of the convention and no. 35 (2013) on combating racist hate speech. The Committee recommends the urgent enactment of this Bill, in consultation with the public.

The Committee further recommends that the State party ensure all incidents of hate crimes and hate speech are investigated and prosecuted and that the perpetrators are punished, regardless of their official status. The Committee calls on the State party to conduct educational campaigns to address the root causes of prejudices and promote tolerance and respect for diversity, with a focus on the role and responsibilities of journalists and public officials in that regard.

Special measures

14. The Committee appreciates the particular challenges the State party faces with implementing special measures to redress inequalities of the former apartheid era, and notes the information provided by the State party on the implementation of special measures including the Employment Equity and Black Economic Empowerment Act.

While the Committee appreciates some statistics provided by the State party on the current distribution of persons belonging to various ethnic groups at management levels and in the judiciary, the Committee is concerned at the lack of comprehensive disaggregated data on the impact of special measures on affected groups, especially on the most disadvantaged and vulnerable among them, in the areas of employment, education and representation in public and political affairs at all levels. The Committee is also concerned at the lack of information on the impact of special measures on indigenous peoples (arts. 2 and 5).

15. Recalling its general recommendation no. 32 (2009) on the meaning and scope of special measures, the Committee requires the State party to provide detailed qualitative and quantitative information in its next periodic report on the impact of the special measures in employment, education and public and political affairs. The Committee also requests further information on specific special measures for indigenous peoples and their impact.

Harmful cultural or traditional practices

16. The Committee is concerned at the continuation of harmful cultural or traditional practices against women and girls, such as Ukuthwala, which can be tantamount to forced child marriage. The Committee welcomes the work of the South African Law Reform Commission in investigating this practice, and notes the information provided by the State party on provisions of existing laws, such as the Trafficking in Persons Act (Act No. 7 2013), which can be used to prosecute perpetrators of Ukuthwala for child abduction, forced child marriage, and child sexual exploitation. However, it notes with concern that in remote rural areas this practice is often unreported, leading to impunity of perpetrators (art. 6).

17. Taking into account its general recommendation No 25 (2000) on gender- related dimensions of racial discrimination, the Committee requests that the State party take effective measures to protect children, particularly in remote rural areas from harmful cultural or traditional practices. The Committee recommends the State party conduct educational campaigns in rural communities and areas where practices such as Ukuthwala are prevalent in order to end this practice, provide information to victims on access to judicial remedies and encourage reporting of cases. The Committee requests the State party provide information in its next periodic report on steps taken following the South African Law Reform Commission’s investigation to end Ukuthwala ,the impact of these measures, and statistical data on the numbers of cases of Ukuthwala reported, prosecutions, and convictions of perpetrators.

Education

18. The Committee notes the importance of education in building a post-apartheid society. While noting that the State party reported that 20% of its budget is allocated to education, the Committee expresses concern that disparities remain in equal access to quality education and educational resources by all ethnic groups and that current educational programmes have not assisted in eliminating racial and xenophobic tensions and barriers (arts. 5 and 7).

19. The Committee recommends the State party ensure equal access to quality education and educational resources to all ethnic groups, and adopt further measures to counter racial and xenophobic tensions through developing public educational programmes which promote tolerance and respect for diversity, deter racism and xenophobia, and promote a positive image of ethnic groups within the State party.

Situation of persons with Albinism

20. The Committee expresses concern on the discrimination and stigmatization faced by persons with Albinism, on the basis of colour. It is also alarmed by reports of cases of abductions, killing, and dismembering of persons with Albinism, including women and children, as their body parts are allegedly used for witchcraft purposes.

21. The Committee recommends that the State party take effective measures to protect persons with Albinism from violence, abductions, discrimination, and stigmatization, including through the action plans and other measures taken to implement the Durban Declaration and Programme of Action.

Situation of black and marginalized ethnic women and girls

22. The Committee is concerned by multiple forms of discrimination faced by black and marginalized ethnic women and girls, who are strongly impacted by poverty and lack of access to basic services, in particular housing, education, health care, and equal employment opportunities (art. 5).

23. Recalling its general recommendation No. 25 (2000) on gender-related dimensions of racial discrimination, the Committee recommends that the State party take particular note of the multiple forms of discrimination against black and marginalized ethnic women and girls, in particular those from the most impoverished groups, and take necessary measures to prevent this discrimination and increase their equal access to services. The Committee requests that the State party provide quantitative and qualitative information on factors affecting the enjoyment of these women and girls of the rights under the Convention, measures taken to address these shortcomings, and the impact of such measures.

Situation of Indigenous peoples

24. The Committee expresses concern at the situation of indigenous peoples who continue to suffer from extreme poverty and marginalization and face discrimination and difficulty with language, education, land redistribution and lack information on their rights under the Convention. The Committee notes that the Khoi-San Leadership Bill was introduced into parliament in 2015. However, it is concerned that this Bill may not provide adequate redress, as it may recognize traditional leaders without taking into consideration the particular approach of indigenous peoples to leadership (arts. 2 and 5).

25. In the light of its general recommendation no. 23 (1997) on the rights of indigenous peoples, the Committee recommends that the State party take necessary measures to address the situation of indigenous peoples and ensure their equal enjoyment of the rights under the Convention. It further recommends implementing recommendations of the NHRI following its investigative hearings on the rights of indigenous peoples in 2004 and 2016. The Committee also requests the State party continues to ensure the involvement and consultation of indigenous peoples in the finalization of the Khoi-San Leadership Bill and other matters concerning them, taking into consideration the approach to leadership of indigenous peoples.

Situation of non-citizens

26. The Committee is concerned about the situation of non-citizens including asylum seekers, refugees and migrants, in particular with regards to:

(a) Cases of unlawful prolonged detention in repatriation centers such as the Lindela Repatriation Centre, and conditions of detention in this Centre which are reportedly below standard;

(b) Difficulty in accessing basic services such as health-care and in accessing justice;

(c) Discrimination, xenophobia, and racism against non-citizens including refugees and asylum seekers, and migrants which has resulted in harassment and numerous violent attacks causing a number of deaths and injuries. Violent attacks, notably in 2008 and 2015, have also led to large scale displacement of non-citizens and property damage (arts. 5 and 6).

27. Recalling its General Recommendations No. 22 (1996) on article 5 and refugees and displaced persons and No. 30 (2004) on discrimination against noncitizens, and General Recommendation 15 (1993) on article 4 of the Convention, the Committee recommends that the State party should also:

(a) End unlawful detention practices of asylum seekers and refugees, and use detention for the shortest period of time and only for the most urgent cases. Improve conditions of detention. Speed up the consideration of status determination of refugee and asylum cases. Establish an independent monitoring mechanism through ratification of the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT), to monitor repatriation and detention centers.

(b) Take measures to ensure non-citizens have access to basic services such as health-care, and access to justice, without discrimination. Provide language interpretation services to eliminate barriers in access to basic services. Conduct trainings of law enforcement officials, and health and social service providers on the rights of non-citizens.

(c) Take action to prosecute perpetrators of racial discrimination and xenophobia motivated crimes. Provide further information on the prosecution of cases of violence against “foreign nationals,” in dedicated courts or other courts. Provide statistical data on number of cases reported, prosecutions, and convictions of perpetrators. Establish further dialogue within communities in conflict to address root causes of discrimination and violence. Conduct public education campaigns to end racism and xenophobia.

28. The Committee welcomes efforts by the State party to reconsider its migration policy and encourages it to utilize core regional instruments, such as African Union 1969 Convention governing the specific aspects of refugee problems in Africa, which facilitate the implementation of the Convention. The Committee further encourages the State party to facilitate a visit by the Special Rapprotuer on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, which was requested in 2008, with reminders sent in 2010, 2011, and 2012.

Trainings of Judges and law enforcement officials

29. The Committee is concerned at the lack of information on the training of judges, police officers, and other law enforcement officials, on human rights, in particular on the rights in the Convention, and the impact of such trainings on eliminating racial discrimination. The Committee welcomes information that Equality Courts have been established to end racial discrimination, however, it is concerned by the underutilization of these courts due to lack of public awareness of its purpose and functions (art. 2 and 7).

30. The Committee encourages the State party to conduct educational campaigns on human rights and the rights under this Convention to the general public as well as specialized trainings to judges, police officers and law enforcement officials, and provide information in its next periodic report on the impact of such trainings. The Committee further recommends that the State party conduct public educational campaigns on access to judicial remedies for racial discrimination, in particular on the purpose and functions of the Equality Courts.

D. Other recommendations

Ratification of other instruments

31. Bearing in mind the indivisibility of all human rights, the Committee encourages the State party to consider ratifying those international human rights instruments that it has not yet ratified, in particular treaties with provisions that have direct relevance to communities that may be subjected to racial discrimination, including the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, International Convention for the Protection of all Persons from

Enforced Disappearance, ILO Convention on Indigenous and Tribal Peoples (No. 169).

Follow-up to the Durban Declaration and Programme of Action

32. In the light of its general recommendation No. 33 (2009) on the follow-up to the Durban Review Conference, the Committee recommends that, when implementing the Convention in its domestic legal order, the State party give effect to the Durban Declaration and Programme of Action, adopted in September 2001 by the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, taking into account the outcome document of the Durban Review Conference, held in Geneva in April 2009. The Committee requests that the State party include in its next periodic report specific information on action plans and other measures taken to implement the Durban Declaration and Programme of Action at the national level.

International Decade for People of African Descent

33. In the light of General Assembly resolution 68/237, in which the Assembly proclaimed 2015-2024 the International Decade for People of African Descent, and resolution 69/16 on the programme of activities for the implementation of the Decade, the Committee recommends that the State party prepare and implement a suitable programme of measures and policies. The Committee requests that the State party include in its next periodic report specific information on the concrete measures adopted in that framework, taking into account its general recommendation No. 34 (2011) on racial discrimination against people of African descent.

Consultations with civil society

34. The Committee recommends that the State party continue consulting and increasing its dialogue with civil society organizations working in the area of human rights protection, in particular those working to combat racial discrimination, in connection with the preparation of the next periodic report and in follow-up to the present concluding observations.

Amendment to article 8 of the Convention

35. The Committee recommends that the State party ratify the amendment to article 8 (6) of the Convention adopted on 15 January 1992 at the fourteenth meeting of States parties to the Convention and endorsed by the General Assembly in its resolution 47/111.

Follow-up to the present concluding observations

36. In accordance with article 9 (1) of the Convention and rule 65 of its rules of procedure, the Committee requests the State party to provide, within one year of the adoption of the present concluding observations, information on its implementation of the recommendations contained in paragraphs 9 and 13 above.

Paragraphs of particular importance

37. The Committee wishes to draw the attention of the State party to the particular importance of the recommendations contained in paragraphs 15, 23, 25, and 27 above and requests the State party to provide detailed information in its next periodic report on the concrete measures taken to implement those recommendations.

Dissemination of information

38. The Committee recommends that the State party’s reports be made readily available and accessible to the public at the time of their submission and that the concluding observations of the Committee with respect to those reports be similarly publicized in the official and other commonly used languages, as appropriate.

Preparation of the next report

39. The Committee recommends that the State party submit its combined ninth to eleventh periodic reports, as a single document, by 9 January 2020, taking into account the reporting guidelines adopted by the Committee during its seventy-first session (CERD/C/2007/1) and addressing all the points raised in the present concluding observations. In the light of General Assembly resolution 68/268, the Committee urges the State party to observe the limit of 21,200 words for periodic reports.

Source: United Nations (see all documents here)