South Africa: South African Human Rights Commission

This morning we visited the South African Human Rights Commission which has the responsibility of promoting, protecting, and monitoring human rights in South Africa. The Commission’s mandate is to address those human rights violations that have been brought to its attention by individuals and organizations. The Commission takes a dual approach to addressing human rights through its legal services department and training and education program. The training and education program takes a proactive approach by visiting rural communities and educating them on human rights guaranteed by the Constitution through public programs and seminars. Unlike the United States, the South African literacy rate is much lower among its citizens.

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The educational programs target individuals in the rural communities, because they are more vulnerable and encourage them to claim their constitutional rights. The legal services department is an administrative agency similar to the Equal Employment and Opportunity Commission (EEOC). It investigates complaints made by individuals and NGOs that are brought to their attention. The department’s review process begins with an initial screening of the complaint to see whether a violation occurred. It then contacts the respondent to request a response to the alleged violation. If the department receives a response disputing the claim, the claimant has an opportunity to comment on the response. The commission synthesizes the complaint and response to propose a resolution to the problem. If the respondent does not like the decision reached by the department it can go through an appeals process. Unlike the EEOC, the decisions of the Commission are non-binding and require a non-complying respondent to be brought before a court to reach enforcement. The South African Constitution guarantees positive socioeconomic rights, whereas in the United States these rights are negative. While it is beneficial to grant citizens the opportunity to enforce human rights, it seems administratively complicated to protect and monitor socioeconomic rights. From our discussion, it appears as if many of the Commission’s complaints are related to hate speech that may be used as a tool to advance certain political views. Additionally, some of the complaints related to violations of human dignity are unenforceable alone. Hopefully, with an increase in the education of human rights guaranteed to South Africans, there will be decreased complaints regarding human dignity and a more concentrated focus on the socioeconomic rights that are enforceable.

Legal Aid South Africa is a government-funded organization that is responsible for realizing the rights of South African’s by representing citizens in criminal and civil cases. The clinic is similar to the United States legal aid organizations except that it is government funded, whereas in the United States it is privately funded. The government is required to allocate a certain amount of money every year to the clinic to use at its discretion. The right to legal counsel is similar to the United States in that it is expressly guaranteed by the Constitution. The discretion allows the legal clinic to pursue impact litigation. This differs from the United States in that impact litigation cannot be brought by legal aid organizations. There is also a substantial difference in how much money is allocated per person, per annum to legal aid in South Africa and the United States. In South Africa, the approximate cost of legal aid per person is $2 per year. However, in the more developed countries, such as the United States, the minimum amount allocated is approximately $30 per year.

A common theme throughout the day was the role of international law in South Africa’s judicial system. The court uses international law to give effect to what is the Constitution. We do not see the impact of international law in the United States, where we focus primarily on common law and the founding fathers. We had the great pleasure to meet Chief Justice Arthur Chaskalson and Attorney George Bizos who have been significant actors in the early cases regarding human rights in South Africa.

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