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Human Rights Diversity and Social Justice

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Apartheid: Separation. Especially since 1948. Involved many humiliating provisions ... way, they're only slightly better off than they were during apartheid. ... – PowerPoint PPT presentation

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Title: Human Rights Diversity and Social Justice


1
Human Rights Diversity and Social Justice
  • The South African Experience

2
(No Transcript)
3
Outline
  • Legacy
  • The Constitution
  • Laws and policies
  • Litigation
  • Administrative response

4
South Africa the ethnic make-up
  • Black a number of groups
  • Nothing like as many as Nepal!
  • Coloured
  • Mixed race (especially in the Cape)
  • Indian
  • White
  • Afrikaans speaking (Afrikaaners Dutch)
  • English speaking

5
Apartheid Separation
  • Especially since 1948
  • Involved many humiliating provisions
  • Pass laws for blacks
  • Group Areas Act (restrictions on where blacks
    could live)
  • Homelands
  • Bans on inter-racial marriage and sex
  • Separate legislative houses for whites, coloured
    and Indians none for blacks
  • Separate (worse) universities etc

6
And then.
  • Secret negotiations
  • Release of Mandela 1990
  • Interim Constitution 1993
  • Elections 1994
  • Final Constitution 1996 based on interim
  • Blacks take rightful place in politics (gradually
    by PR election system)

7
Constitution
  • Constitution clearly directs that sufficient
    priority be given to dealing with the
    consequences of past discrimination and poverty
  • Geoff Budlender

8
Two strategies (linked)
  • Affirmative action for past disadvantage
  • Economic social and cultural rights for all

9
Historic Disadvantage
  • Recognising the historically diminished use and
    status of the indigenous languages of our people,
    the state must take practical and positive
    measures to elevate the status and advance the
    use of these languages
  • To promote the achievement of equality,
    legislative and other measures designed to
    protect or advance persons, or categories of
    persons, disadvantaged by unfair discrimination
    may be taken.

10
.Procurement
  • When an organ of state contracts for goods or
    services, it must do so in accordance with a
    system which is fair, equitable, transparent,
    competitive and cost-effective.
  • (2) Subsection (1) does not prevent them
    implementing a procurement policy providing for
  • (b) the protection or advancement of persons, or
    categories of persons, disadvantaged by unfair
    discrimination.
  • (3) National legislation must prescribe a
    framework within which the policy referred to in
    subsection (2) may be implemented.

11
.Procurement
  • When an organ of state contracts for goods or
    services, it must do so in accordance with a
    system which is fair, equitable, transparent,
    competitive and cost-effective.
  • (2) Subsection (1) does not prevent them
    implementing a procurement policy providing for
  • (b) the protection or advancement of persons, or
    categories of persons, disadvantaged by unfair
    discrimination.
  • (3) National legislation must prescribe a
    framework within which the policy referred to in
    subsection (2) may be implemented.

12
Social Justice I
  • Housing
  • 26. (1) Everyone has the right to have access to
    adequate housing.
  • (2) The state must take reasonable legislative
    and other measures, within its available
    resources, to achieve the progressive realisation
    of this right.

13
Social Justice I
  • Housing
  • 26. (1) Everyone has the right to have access to
    adequate housing.
  • (2) The state must take reasonable legislative
    and other measures, within its available
    resources, to achieve the progressive realisation
    of this right.

14
Social Justice II
  • Health care, food, water and social security
  • 27. (1) Everyone has the right to have access to
    -
  • (a) health care services, including reproductive
    health care
  • (b) sufficient food and water and
  • (c) social security, including, if they are
    unable to support themselves and their
    dependants, appropriate social assistance.
  • (3) No one may be refused emergency medical
    treatment.

15
Social Justice II
  • Health care, food, water and social security
  • 27. (1) Everyone has the right to have access to
    -
  • (a) health care services, including reproductive
    health care
  • (b) sufficient food and water and
  • (c) social security, including, if they are
    unable to support themselves and their
    dependants, appropriate social assistance.
  • (3) No one may be refused emergency medical
    treatment.

16
Social Justice III
  • Education
  • 29. (1) Everyone has the right -
  • (a) to a basic education, including adult basic
    education and
  • (b) to further education, which the state,
    through reasonable measures, must make
    progressively available and accessible.

17
Social Justice III
  • Education
  • 29. (1) Everyone has the right -
  • (a) to a basic education, including adult basic
    education and
  • (b) to further education, which the state,
    through reasonable measures, must make
    progressively available and accessible.

18
Land Reform
  • 25. (2) Property may be expropriated only in
    terms of law of general application -
  • (a) for a public purpose or in the public
    interest and
  • (b) subject to compensation
  • (4) For the purposes of this section -
  • (a) the public interest includes the nations
    commitment to land reform,
  • (5) The state must take reasonable legislative
    and other measures, within its available
    resources, to foster conditions which enable
    citizens to gain access to land on an equitable
    basis.

19
Land Reform
  • 25. (2) Property may be expropriated only in
    terms of law of general application -
  • (a) for a public purpose or in the public
    interest and
  • (b) subject to compensation
  • (4) For the purposes of this section -
  • (a) the public interest includes the nations
    commitment to land reform,
  • (5) The state must take reasonable legislative
    and other measures, within its available
    resources, to foster conditions which enable
    citizens to gain access to land on an equitable
    basis.

20
Land Reform contd
  • (6) A person or community whose tenure of land is
    legally insecure as a result of past racially
    discriminatory laws or practices is entitled, to
    the extent provided by an Act of Parliament,
    either to tenure which is legally secure or to
    comparable redress.
  • (7) A person or community dispossessed of
    property after 19 June 1913 as a result of past
    racially discriminatory laws or practices is
    entitled, to the extent provided by an Act of
    Parliament, either to restitution of that
    property or to equitable redress.

21
Land Reform contd
  • (6) A person or community whose tenure of land is
    legally insecure as a result of past racially
    discriminatory laws or practices is entitled, to
    the extent provided by an Act of Parliament,
    either to tenure which is legally secure or to
    comparable redress.
  • (7) A person or community dispossessed of
    property after 19 June 1913 as a result of past
    racially discriminatory laws or practices is
    entitled, to the extent provided by an Act of
    Parliament, either to restitution of that
    property or to equitable redress.

22
Legislative and Other Measures
  • Procurement
  • Land Reform
  • Black Economic Empowerment
  • Employment Equity
  • Housing laws and policies

23
What difference does it make to put things in a
Constitution?
  • Requires action
  • Cant be easily changed
  • Keeps rights approach in forefront
  • Elite may be or become less concerned about the
    poor
  • Dominane of the ANC (now at least) may be a
    problem for accountability

24
Land Reform 3 Strategies
  • Redistribution to provide the disadvantaged and
    the poor with access to land for residential and
    productive purposes.
  • Land restitution covers cases of forced removals
    that took place after 1913.
  • Land tenure reform
  • to improve the tenure security of all South
    Africans
  • to accommodate diverse forms of land tenure,
    including types of communal tenure.

25
Black Economic Empowerment
  • Broad-based Black Economic Empowerment Act 2003
  • Administrative body
  • Codes of Practice
  • Guidelines
  • Indicators
  • Strategy for Government

26
Employment Equity Act 1998
  • Affirmative Action
  • applies to employers with gt50 employees, to state
    or employers with large turnover
  • Eliminate barriers
  • Promote diversity
  • Training
  • Preferential treatment but not quotas
  • Employment equity plans with numerical goals
  • Reporting
  • Enforcement procedures

27
Enforcement of ESC Rights?
  • Cant rely on Government
  • Courts
  • South African Human Rights Commission
  • How to take case of ESC rights to court?

28
Lets unpack Housing
  • everyone has the right
  • to have access
  • to adequate housing.
  • reasonable legislative and other measures
  • within its available resources
  • progressive realisation of this right.

29
Grootboom
  • Squatters living in appalling conditions
  • Went to court eventually to Constitutional
    Court
  • Relying on Constitution, international law

30
The Constitutional Court
31
(No Transcript)
32
Court Order in Grootboom
  • The Constitution requires the state to devise and
    implement within its available resources a
    comprehensive and coordinated programme
    progressively to realise the right of access to
    adequate housing.
  • The Programme must include reasonable measures to
    provide relief for people who have no access to
    land, no roof over their heads, and who are
    living in intolerable conditions or crisis
    situations.
  • The state housing programme in the area of the
    Cape Metropolitan Council fell short of the
    requirements

33
Grootboom impact for people
  • ?The Grootboom community have won a degree of
    temporary security of tenure around a sports
    field in Wallacedene and some very basic
    services. Their situation is far from ideal, but
    at least they do not face imminent eviction and
    have access to water and toilets. They have been
    incorporated into the local authoritys housing
    plan for the area and should be allocated
    permanent accommodation within the next two
    years. ?
  • Sandy Liebenberg

34
Wallacedene in 2006
  • Their houses are all made of scrap material that
    burns easily, their children might walk the
    litter-filled streets with bare feet, they might
    not make enough food to properly feed their
    families. If you look at it that way, they're
    only slightly better off than they were during
    apartheid.
  • http//alex2capetown.blogspot.com/2006_09_01_alex2
    capetown_archive.html

35
Impact on Administration
  • ?I work with the judgment daily, and I think it
    is very carefully and skilfully written. It has
    had a real impact on official housing policy and
    on the way in which the courts deal with
    evictions. But it has a weakness. It does not
    deal with the question of what you can do if you
    are a person who has no home, and you are left
    out in the cold. Is there any direct remedy
    provided under the Constitution? Can you get a
    direct benefit by going to court? The judgment is
    quite weak on this point. All you are entitled to
    is a reasonable programme which will give you
    access within a reasonable period. It does not
    give you a directly enforceable right as an
    individual.?
  • Budlender

36
SAHRC
  • All government bodies have to report on their own
    performance on human rights
  • SAHRC has to make regular reports on performance
    of nation as a whole in respect of ESC Rights
  • Suitable task for such a body?

37
Treatment Action Campaign
  • HIV positive mothers
  • Government refused to give ARV
  • Court ordered

38
Evaluation of land reform
  • Restitution was slow
  • Date twice extended
  • New law in 2003
  • Redistribution slow
  • 30 land intended to be redistributed after 8
    years only 3
  • wiling seller willing buyer didnt work
  • Overall Effective land reform continues to be
    elusive

39
Black Economic Empowerment Problems
  • Use of blacks as fronts for white businesses
  • Limited range of beneficiaries political
    favouritism
  • Development of a small black elite

40
Education
  • Disappointing progress in higher education
    figures while students still predominate high
    dropout rate
  • Problems with rural schools
  • But overall reasonable measures are being taken

41
Housing
  • Well over one million houses
  • But still not enough unable to cope with growth
    in households!
  • Still 2.2 million households without adequate
    housing
  • But right to housing informs various government
    programmes.
  • Courts have protected many against eviction

42
Problems
  • World economy
  • Cautious approach
  • Market based
  • Need to carry minorities
  • Federal system capacity of provincial
    governments
  • Attitudes

43
Conclusions
  • Largely ethnicity blind approach
  • Even BEE means black, coloured and Indian
  • Emphasis on really needy
  • Important role of courts and SAHRC
  • May increase if strains emerge in politics
  • Political control does not necessarily translate
    into benefits for poorest
  • Having ESC Rights in Constitution has been of
    definite value
  • Change takes time
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