Who will protect us?

25 June 2018

In a recently-published article, A Strategy Built on Race Profiling and Hate, the Centre for Unity in Diversity (CUD) put the searchlight on yet another incident of race-baiting and instigation by Julius Malema at a Youth Day event in Klerksdorp.

This time, the Indian population fell prey to his concerted efforts to stoke the racial fires in the country. Sweeping generalisations, overt and covert threats appear to be the norm in the EFF’s strategy and tactics toolkit, with a concomitant expectation that levels of fear and anxiety will increase amongst the general populace, and the foundational values of the Constitution will become eroded. 

In an ideal world, the tenets of the Constitution and the practice of democratic norms serve as strong deterrents.  At best, they create an environment where extremists like Malema are isolated and held to account by the justice system and society - including by political leadership across the spectrum. This ideal is also foregrounded in Chapter 9 of the Constitution providing for the establishment of institutions supporting constitutional democracy.

For the purposes of this article, focus is placed on one of the seven institutions, the South African Human Rights Commission (SAHRC), whose powers are outlined in section 184 of the Constitution and, in summary, include the following:

- Investigate and report the observance of human rights;

- Carry out research and educate; 

- Develop awareness of human rights;

- Take steps to secure appropriate redress where human rights have been violated;

- Investigate complaints of violations and seek appropriate relief.

The constitutional and statutory framework of the SAHRC is not in contention, nor its newly-revised Complaints Handling Procedures, operational from 1 January 2018. The Procedures Manual details its modus operandi in conducting investigations of alleged violations of human rights and the regulations to be followed by the Commission in investigating these. Of concern, however, is the issue of the role of the SAHRC in consistently and unremittingly holding all violators of human rights to the same standards, and meting out punishments that are consistent and predictable. 

The role of the SAHRC is vital in building and strengthening a culture of tolerance, respect and crucially, one of holding violators to account, including with the option of legal proceedings as outlined in section 17(1) of its Procedures Manual:

- The Commission may institute legal proceedings in a competent court or tribunal, as contemplated in section 13(3)(b) of the Act, in its own name or on behalf of a person or a group or class of persons at any stage;

- The Commission may institute legal proceedings in its own name, or on behalf of a person or group or class of persons as contemplated in section 20(1)(f) of PEPUDA. 

The concern however is that of why someone like Julius Malema - who remains a serial violator and seems impervious to not only the damage he causes to individuals and groups but to the critical project to rebuild and unite the country - is not dealt with the requisite enforcement of the powers vested in the SAHRC? His continued acts and utterances that traverse hate speech, the incitement of violence and inflammatory speech, undermine foundational values and principles of the constitutionally-enabled institutions supporting democracy.

The Commission is prone to bemoan capacity constraints - including fiscal ones that restrict the ambit of their work - but for many South Africans the question remains, does the organisation have the requisite political will to perform its role and functions independently and impartially without fear, favour or prejudice? The SAHRC must effect its role and offer succour to all South Africans that their rights to freedom and human dignity will not be violated. It is a positive development that the Commission has responded in the last few days to the complaint by the Democratic Alliance that it will investigate Malema’s anti-Indian comments.                   

At a time when the guardrails of our democracy are creaking, it behoves institutions like the SAHRC to shore up the foundations and execute its mandate fairly and unremittingly, wherever the threats might emerge from. The promise of a country for all cannot be held ransom by polarisation, racial, ethnic, cultural or any other form of discrimination. The work of building and rebuilding requires bold action from citizens and institutions such as the SAHRC, which must offer comfort to all South Africans.              

By Ms Zohra Dawood, Director, Centre for Unity in Diversity, 25 June 2018