11 December 2018

EE response to Satchwell/Langa and Manjoo reports: EE closes the Satchwell Enquiry, continues to learn and commits to extensive organisational review to build a better EE

The National Council has resolved not to publish either of the Satchwell Enquiry reports in full because of the sensitive details therein. We are drafting summaries of both reports that protect the confidentiality of complainants. These will be available on our website shortly.

Introduction

The National Council (NC) of Equal Education (EE) established an independent enquiry to investigate and make findings on serious allegations, including sexual harassment and intimidation, raised in the Mail & Guardian on 18 May 2018, against former leaders of EE.

A priority for us is to ensure the safety, protection and wellbeing of every member and employee of our movement and to listen to vulnerable members of our movement when they bring forward allegations of wrongdoing, acting sensitively and swiftly. We want to foster an environment in which every member and employee can thrive and participate meaningfully in EE.

We have tried to build a movement reflective of the just society that we strive for: democratic in nature, and representative of all of the different people who are members and supporters of EE. We know that if we do not look inward or if we stifle criticism, we will undermine our principles, our work and the young people that we seek to empower. We don’t do this perfectly all of the time and we own our shortcomings and our imperfections, just as we claim our victories, so that we can transform, restore and do better.

It was with this in mind that we set up an independent enquiry, so that we could deal with the issues raised transparently and with due process, in an environment for complainants to participate without fear or intimidation.

The members of the independent Panel comprised of retired Judge Kathleen Satchwell, Professor Rashida Manjoo of the Faculty of Law at the University of Cape Town and Dr Malose Langa of the Department of Psychology at the University of the Witwatersrand. When the Panel concluded its processes, the respondents in the enquiry were no longer formally affiliated to EE, so this was not a disciplinary enquiry where any formal labour law ruling could be made. However, it was our intention that this enquiry would foster accountability and bind us to any findings and recommendations – the Panel being broadly empowered to do so. The Panel was asked to investigate and make findings on:

a) Allegations regarding an incident in 2009 as reported in the Mail & Guardian article;

b) Specific complaints of sexual harassment or related misconduct against former EE leader Doron Isaacs, including in respect of consensual relationships, while he was a member and employee of EE;

c) Whether former leader of EE, Zackie Achmat or any other member, employee or office bearer silenced or intimidated any potential complainants against Isaacs; and

d) The 2011 investigation into Isaacs’ conduct by the then EE Board and the Human Resources Subcommittee.

The Enquiry commenced on 12 July 2018 with a public call for submissions on issues relevant to the scope of the investigation. Nineteen statements were submitted to the Panel, of which the Satchwell/Langa describes as follows:

- three of the statements referred to instances in which persons said that they felt that they had been manipulated into participating in sexual texting with Isaacs;

- three were by persons who said they had consensual, intimate sexual relationships with Isaacs which they subsequently considered manipulative by design; and

- three were by persons who said that they felt that EE had tried to prevent the exposure of harassment and intimidation in the organisation.

The rest focused on broader issues such as “perceived racial or class bias within EE while others dealt with their hearsay knowledge in later years as to the events which occured in 2011.”

The Women’s Legal Centre (WLC) represented all the complainants before the Panel and we are very grateful to the WLC for supporting them and for their participation in this process.

There was no agreement on all the issues between the panelists, thus on 28 November 2018, Judge Satchwell and Dr Langa produced their reasons and findings (referred to here as the “Satchwell/Langa Report”), with a second report being provided by Professor Manjoo on 10 December 2018 (referred to here as the “Manjoo Report”). The latter report was distributed on

11 December 2018 after the NC convened a special meeting to consider the reports. The Enquiry process took much longer than expected – we had initially set three months for the Enquiry, however the Panel explained that fulfilling their mandate in line with their understanding of the Terms of Reference (TOR), required more time. We are grateful to all members of the Panel who executed their mandate diligently, discreetly and with integrity and independence.

We would have preferred to have received both reports at the same time but since we did not, we have withheld giving any substantive comment until we were able to consider both reports. We apologise for any additional stress that this may have caused to those who participated in the Enquiry.

This process has paved the way already for EE and for social justice organisations more broadly, to do better. It has been a wake-up call for all of us. It has been a complicated and difficult and imperfect process. We are resolute in our commitment to meaningfully address all the challenges placed before us, illustrating our commitment to learning and leading and trying our best always to act with integrity. We are also committed to sharing our learnings from this process within our sector, so that other organisations can benefit from our experiences. This includes both the advances and missteps. We hope that our comrades, partners and supporters in civil society will do the same.

EE’s reflections

What follows are some of our substantive reflections on the reports.

The exclusion of the 19 statements received by the Panel from evidence

The exclusion of the submissions impacted the Panel’s findings across the four areas of enquiry set out in the TOR. We therefore deal with this issue first. The Full Panel, of all three panelists, concluded that they could not receive the 19 statements into evidence. This was because the complainants did not permit their names or their statements to be provided to the respondents which would not have allowed the respondents to respond to the allegations made against them. As detailed below, Professor Manjoo believed that the submissions could be used generally to help us and the civil society sector in highlighting areas which need addressing.

The Satchwell/Langa Report concluded that the complainants’ requests for complete anonymity was at odds with a fair procedure. The Satchwell/Langa Report expressed its regret at this, explaining that the Panel had proposed a number of more victim-centered options for sharing information that were seemingly rejected or challenged. The Satchwell/Langa Report made it clear that the Panel was unwilling to compromise on principles of natural justice and constitutional rights of all affected parties and the express requirement in the TOR that all information and complaints be provided to Isaacs and to anyone else against whom a complaint was made.

We state unequivocally that EE respects all the complainants’ prerogative to retain anonymity and confidentiality. We acknowledge that participating in these processes can be stressful and traumatic. Some of the language in the Satchwell/Langa Report is in our view wrongly derisive in this regard. We recognise that in conducting sexual harassment investigations, we need both support and response procedures in place and tried our best to provide this by setting up this Enquiry and offering professional counselling support to anyone who wished to access this.

It seems to us a well-accepted conundrum in sexual harassment investigations around the world that when complainants require complete anonymity, the investigation is limited in how it can respond and move forward. The Satchwell/Langa Report did not exonerate Isaacs in relation to the statements regarding sexual harassment but rather found that there was nothing to exonerate him from as the statements were excluded from evidence and could not be considered.

Professor Manjoo agreed that it was not possible to make findings against any of the individuals accused of misconduct. However, she contended that the statements should not have been rejected in totality but that the Panel ought to have still been able to reckon with them when focusing on “broader issues of institutional culture, power and victimisation”. Professor Manjoo has provided a summary of the allegations of sexual harassment, retaliation and abuse.

These are jarring, difficult to read and describe experiences of sexual harassment and misconduct that no one should ever be subjected to. These statements have of course not been put to those accused, have not been made available to us (it is our first time hearing of some of the issues) and we have not been provided with an opportunity to respond. That said, it is painful to read them. We must not evade them, and we must face up to them openly and honestly.

The Enquiry had to deal with seemingly irreconcilable issues: on the one hand to honour complainants’ wishes to remain anonymous and seek justice and on the other the fundamental principles of natural justice that require an accused to know what has been said about him and by whom, and be allowed to respond. There are many important reasons for the principles of natural justice. But it is also has to be recognised that those principles can fail to acknowledge the power structure in which they operate and can be used to protect and entrench a more powerful group of people. Collectively, we need to find a way to balance these competing rights. We are willing to participate in any discussions which can propose more constructive, sensitive and affirming processes in the future.

We are saddened that the complainants felt they could not fully participate in the process in a manner in which the panelists felt it possible to treat their submissions as evidence. We don’t know whether these implications were fully explained to complainants. We understand the power dynamics and the factors that influenced the complainants’ decision. We are concerned about their expressed fears of reprisal and threats of intimidation. We will not tolerate any threatening behaviour against complainants and will take responsive action against any forms of retaliation or attempts at intimidation or suppression.

Findings from the Satchwell/Langa Report in respect of:

a) Allegations regarding an incident in 2009 as reported in the Mail & Guardian article;

b)  Whether former leader of EE, Zackie Achmat or any other member, employee or office bearer silenced or intimidated any potential complainants against Isaacs; and

c)  The 2011 investigation into Isaacs’ conduct by the then EE Board and the Human Resources Subcommittee.

In respect of a, b and c, the Satchwell/Langa Report felt equipped to make findings based on the evidence before it. The Satchwell/Langa Report concluded the following:

1. No evidence was produced to support the existence of any allegation in respect of the 2009 incident involving Isaacs, which was reported in the Mail & Guardian article of 18 May 2018, and all the available evidence exonerates Isaacs from any wrongdoing in relation to such allegation.

2. No evidence was produced to support the allegation against Achmat that he silenced or intimidated or attempted to silence or intimidate any potential complainant, as was reported in the Mail & Guardian article of 18 May 2018, and all evidence available exonerates Achmat of any wrongdoing in this regard. Similarly, no evidence has been produced to support any allegations against Isaacs that he silenced or intimidated or attempted to silence any potential complainant as was reported in the Mail & Guardian article of 18 May 2018 and all evidence available exonerates Isaacs of any wrongdoing in this regard. There were no other complaints of attempted or completed acts of intimidation or silencing on the part of Isaacs or Achmat regarding any potential complainant and therefore there was nothing before the Panel of which Isaacs or Achmat needed to be exonerated.

3. The process followed by the Subcommittee, the Chair of the Board and the Board in the 2011 investigation was fair and appropriate in the circumstances and met the requirements of natural justice and proper procedure. The findings of the Subcommittee as endorsed by the then Board were considered rational and correctly reflected the absence of evidence before them. No member of the Subcommittee or the Board had a conflict of interests as no person allowed any personal knowledge of or connection to Isaacs or any other person to compete against or overwhelm their duty to conduct an independent and impartial investigation in their capacity as a Subcommittee or Board member, as the case may be.

The above findings were made notwithstanding the exclusion of allegations that complainants submitted (for the reasons we have outlined above). The Manjoo Report disagreed with the above findings and submitted that there was insufficient basis upon which to make any findings.

In summary, the Satchwell/Langa Report states that there was insufficient evidence, which the Panel could consider, to make findings that exonerate Isaacs (as there was nothing to exonerate him from). Ultimately, Satchwell/Langa held that it would be unfair to consider allegations and make findings on facts that could not be put to the accused. So although the TOR allowed for confidentiality, it did not allow for anonymity from the accused or from the Panel (as was the case in some instances). In respect of others, the Satchwell/Langa Report finds that there was enough evidence to exonerate former leaders of EE: Ensor, Geffen, Fineberg, Achmat and Adler.

We had hoped that all the submissions could have been engaged with and for greater guidance as to how to run victim-centered approaches. Therefore, in some respects, we believe that the Panel was not well-placed to deal with the substantive issues raised and therefore, although we note the findings of the Satchwell/Langa Report, we are ever-mindful of the crucial organisational observations and recommendations made in the Manjoo Report. We appreciate all the panelists’ due consideration of the issues and evidence before them, including their tough disagreement and all of the limitations and imperfections in the process highlighted in each of the reports.

Immediate learnings

We acknowledge that the TOR were not perfect and the struggle this may have caused to the participants and the panelists. This was always one part of a two-part process. We embarked on this process together with a commitment to a broader organisational review. The purpose of this Enquiry was to establish what had happened and to contribute to our subsequent processes for dealing with the systemic issues.

We heed the vital detailed feedback and critique the Satchwell/Langa Report gives both to us and to those involved in the 2011 investigation. One of the lessons is that even if there was no clear complainant before us in 2011, it should have been an opportunity to deepen the knowledge and understanding of all employees and members on issues of inequity, sexual harassment and the channels through which complaints can be made. Training on the issue and processes should have followed.

Further, we agree that the lines between personal and political – especially in respect of our leadership - are blurred and that we expect greater scrutiny of our leaders and must hold them to a higher standard. Sensitive, kind and encouraging language should also be used when employees or members raise any concerns in relation to the conduct of our leaders, with zero tolerance for any reprisals. This is all highly relevant to EE in 2018, with the Satchwell/Langa Report even stating that “a spirit of organisational justice explored and established in 2011 may have assisted in avoiding this present 2018 organisational debacle”.

The Manjoo Report is very useful to our development as we work on healing ourselves, as we undertake internal restorative and transformative justice measures and as we work on restoring trust and confidence through a broader organisational review that is already underway. Some of Professor Manjoo’s recommendations have already helped shape commitments that we feel we can already undertake. These undertakings are made for the purpose of building a stronger and better Equal Education for the future. We are committed to the following:

1. Engaging in an internal transformative justice process that includes substantive discussions about organisational culture and practices;

2. Engaging with the WLC (if they are willing) and the complainants (if possible) in line with their commitment to help us, and also in line with our commitment to treat all complainants with respect and dignity;

3. Undertaking an audit to establish whether our internal policies are sufficient, whether there is substantive knowledge of such policies, whether implementation measures are in place and also to assess whether they work in practice (including exploring external anonymous whistleblowing reporting structures);

4. Conducting regular cultural surveys that include issues pertaining to sexual harassment; and

5. Providing regular training to all members and staff on our policies and procedures in relation to sexual harassment, including the development of educational tools and resources.

We hope that through our broader organisational review and in our engagements with partners, sister organisations, supporters and concerned members of the public, we will be able to crystallise clear processes and responses to all complaints of sexual harassment, intimidation and retaliation that are raised in our organisation. We hope that, through these learnings, we can build fair, vibrant and supportive processes that are transformative and restorative.

This Enquiry could not have been undertaken without those who supported and participated its work, including the complainants who came forward and shared their testimonies, the WLC who gave legal support to all the complainants, Cheadle Thompson and Haysom Inc who provided legal and secretariat support to the Panel, and all the respondents and their legal representatives.

The way forward

There were complainants in this enquiry and where natural justice produces outcomes that fall short, we must push beyond the existing framework and believe that there can, one day, be a process designed by womxn and other marginalised groups that will hear, protect, support and centre our experiences to find means of restorative justice and healing. Our politics and our struggles have become so multifaceted that it is easy to polarise issues that in fact overlap explicitly. Our principles, as per our politics, were always intended to centre and support those that wish to come forward.

We must recognise the emotional labour carried by womxn inside Equal Education over the last eight months, womxn that held complainants at the WLC, womxn that bravely submitted testimony to the Panel and those that have been personally affected by responding to the difficult work of this Enquiry. It is clear to us that while we understand that an organisational culture is the most important thing that will be able to create a safe and positive working environment – the very same applies to our individual accountability, this sector and society more broadly.

The Equal Education of 2018 is not the same as the Equal Education of 2011. We accept being held accountable and in fact appreciate the tough conversations taking place in the sector, because so many lessons and progressive relationships have come from this experience. Members of civil society should carefully consider how to encourage and contribute to our movement in ways that allow for collective learning and building around these issues for the future.

We are a movement of young people and young comrades, and we appreciate having been part of this process in a time of outstandingly brave women embodied by just hashtags like #MeToo and #WeBelieveHer. These voices are what contributed to our confidence in putting in place an independent panel that we had hoped would bring about restorative justice. We know that much more work needs to be done. We carry the hope that our momentum and fire does not cease, but rather that we use our strength and convictions to build a more just EE and just society.