Engage us on your modus operandi: An open letter to the South African Human Rights Commission (HRC)

I am writing this letter out of concerns I have about the manner in which the Human Rights Commission (HRC) is handling the matters relating to COSATU General Secretary, Cde Zwelinzima Vavi, and ANC Youth League President, Cde Julius Malema. The aim however is not to get into the merits or demerits of the issues at hand. The two comrades have explained themselves, including the context within which these remarks were made.

We are raising these matters not as detraction from some of the very good work done by the HRC in our emerging democratic dispensation. For instance one of the most sterling pieces of work done by the HRC is that of a thorough investigation into the socio-economic conditions of farm workers in South Africa's countryside and some of its investigations into various aspects of racism in our society. The SACP supports the existence of, and generally the work done by, the HRC. It is precisely for these reasons that we are now deeply disturbed by the recent developments and behaviour of the HRC, which threatens to undermine its track record thus far.

The manner in which the Vavi and Malema matters have been handled by the HRC is deeply worrying as it threatens to erode whatever good work this Commission has done before. In my view its handling of these matters seriously undermines its constitutional mandate to "promote the observance of, respect for and the protection of fundamental rights; to develop an awareness of fundamental rights among all people of the Republic".  In undertaking these tasks, the HRC has to be seen to be performing its duties in a fair, impartial, balanced and independent manner, without fear, prejudice or favour.

The Human Rights Commission Act, 1994, states, among other things, that "A member of the Commission or a member of the staff of the Commission shall serve impartially and independently and exercise or perform his or her powers, duties and functions in good faith and without fear, favour, bias or prejudice and subject only to the Constitution and the law".

With regard to investigations the HRC Act further states that:

 "If it appears to the Commission during the course of an investigation that any person is being implicated in the matter being investigated, the Commission shall afford such person an opportunity to be heard in connection therewith by way of giving of evidence or the making of submissions and such person or his or her legal representative shall be entitled, through the Commission, to question other witnesses, determined by the Commission, who have appeared before the Commission in terms of this section".

In both the cases referred to here it is indeed deeply disturbing that the HRC never afforded any of these comrades an opportunity to be heard. The HRC simply issued an instruction for them to apologise within 14 days, based on information exclusively gleaned from media reports. This is indeed very serious. Institutions like the HRC cannot operate by way of simply taking what is in the media, formulate an opinion without engaging the relevant persons, and make a public judgement that they are indeed already guilty! This is a very serious violation of the Constitution, laws of natural justice and the very spirit and the letter of the Act governing the HRC, and practically turns the HRC into a kangaroo court.

I am raising this matter because there is a dangerous practice that is creeping into some of our legal institutions in particular, and South African society in general, that of simply making public and judgemental statements about individuals, without these individuals being given the right to a proper hearing. This seems to be especially the case with those who occupy prominent and public offices. Some years back the former Minister of Safety and Security publicly accused some ANC leaders for planning to remove the President; followed by the infamous ‘prima-facie' statement by a former Director of Public Prosecutions on ANC President Jacob Zuma. The manner in which the Constitutional Court has publicly pronounced itself on the allegations against Judge Hlophe also leaves a bitter after-taste; and now the behaviour of the HRC. Such actions unjustifiably unleash the always ‘battle ready' media lynch mob, without observance of any due process as contained in our Constitution, thus severely prejudicing the individuals concerned.

For example, in its letter to the General Secretary of COSATU, Zwelinzima Vavi, the HRC, says:

"The Commission has noted reported statements and media release from COSATU yesterday. Notwithstanding that, the Commission remains concerned about your utterances, even if they were not meant literally, as they are in conflict with the values enshrined in our Constitution, including the values of equality, human dignity and advancement of Human Rights"

It is noteworthy here and indeed very disturbing that the starting point of the HRC, without any investigation or hearing already proceeds from the standpoint of ‘reported statements'. From this premise the HRC, without any hearing or investigation, proceeds to make the conclusion that:

"Having regard to the above, we remain of the view that your statement, whatever its intention, and recognising the context within which it was made, may have been and in fact has the potential of negative consequences for our society".

Then the letter ends by saying:

"In pursuance of our constitutional mandate, the Commission is obliged to kindly request that you withdraw your statement unequivocally within fourteen days, failing which the Commission would take the matter further in line with its mandate".  

Then the HRC proceeds to publicly announce this request in the media, without any interaction whatsoever with the individual concerned. This, I would argue, constitutes a very serious violation of our Constitution and the very mandate of the HRC. In its pursuance of protecting human rights of South Africans, the HRC is also obliged to act in a manner that is in line with our supreme law and laws of natural justice.

Perhaps at the heart of the problem in the manner in which the HRC has handled these matters is that either it has no detailed procedures, policies or protocols on how it conducts investigations, OR it has never sought to engage us, as the public, on how it conducts its work. This is deeply concerning given the fact that very HRC Act states that:

"Subject to the provisions of this Act, the procedure to be followed in conducting an investigation shall be determined by the Commission with due regard to the circumstances of each case

"The Commission shall from time to time by notice in the Gazette make known the particulars of the procedure which it has determined in terms of (the above subsection)"

In both the cases referred to here the HRC has neither informed the relevant persons of the ‘procedure to be followed in conducting an investigation', nor has it, to the best my knowledge, made it known in the Gazette ‘the procedure which it has determined'.

One is fully aware and accepts the fact that the HRC has to deal with a variety of matters, many of which are without precedent, and often require urgent intervention; but this can be no justification whatsoever for taking short-cuts on matters that the HRC itself readily admits are of fundamental importance in building a new human rights regime in a democratic South Africa. These would include due process, scrupulous adherence to the right to be heard and open, impartial and transparent processes in examining issues.

The behaviour on the part of the HRC on the cases referred to here raises some fundamental issues about the need for the HRC to engage the South African public on its policies, procedures and a protocol regarding its investigations and how it chooses the issues it takes up. For instance, on a number of occasions in the recent past where blatant threats to human rights have occurred, the HRC, and many other public commentators, have been loudly silent. These include the findings of the Public Protector about the violation of the rights of ANC President Jacob Zuma, as well as the continued threats by the IFP, as recently as last night on national television, to cause mayhem and bloodshed around the street-renaming process in Durban and similar threats and public burning of a book critical of its leader. In fact the IFP has already caused a lot of physical destruction of property in its protests against street-renaming, and where is the voice of the HRC in all this?

It is for the above reasons that the HRC needs to engage the South African public on its policies and protocols, otherwise it runs the risk of being seen as selective and conveniently cherry-picking instances of human rights abuses. It is this selectivity that has bedevilled and threatens to erode the confidence of the majority of our people in some of the institutions of the criminal justice system, notably the Scorpions and the National Prosecuting Authority.

Let the HRC guard against this danger! Failure to adhere to the basic principles of natural justice also runs the risk of reducing the HRC into an institution that is biased towards elites, who happen to have access to the media as well as legal resources.

Asikhulume!!

This article by Blade Nzimande, SACP General Secretary, first appeared in the Party's journal, Umsebenzi Online, Volume 7, Number 11, July 2 2008