The FW de Klerk Foundation has just published its annual Human Rights Report Card for 2022.
The Report found that, with the exception of the severe derogation of many fundamental rights by COVID regulations under the Disaster Management Act, South Africa continued to maintain basic standards of constitutional democracy during 2021.
– Local government elections were conducted successfully throughout the country on 1 November 2021.
– The courts retained their independence and handed down judgements that struck down unconstitutional action and legislation and strengthened constitutional democracy.
– The ANC government repeatedly expressed its determination to combat corruption and to hold those responsible for state capture to account.
– The Zondo Commission continued to expose the extent, depth and cost of state capture and rampant corruption.
The Human Rights Report Card grades rights in the Bill of Rights on a basis of A = excellent; B = good; C = moderate; D = poor; and E = very bad. The allocation of an = sign indicates no change in the right: a + signs denotes an expected improvement and a – sign indicates a likely deterioration of the right.
A. South Africa continued to perform best in terms of political rights (=); citizenship (=); and freedom of religion, belief and opinion (=).
B. It did well with regard to freedom of expression (-), privacy (+) and labour relations (=).
C. It performed moderately in the areas of human dignity(-); slavery, servitude and forced labour (=); freedom of trade, occupation and profession(-); freedom of association(+); property (-); housing (=); environment (=); assembly, protest, demonstration and petition(+); and access to courts (=).
D. South Africa performed poorly in respect of freedom and security of the person (=); the rights of children (-); language and cultural rights (-); cultural, religious and linguistic communities (=); health care, food, water and social security (-); and the rights of arrested, detained and accused persons (=).
E. The country’s worst performance was in the areas of equality (-); life (=); and education (=).
COVID had a particularly negative impact on freedom of trade, occupation and profession; freedom of association; freedom of assembly, protest, demonstration and petition; the rights of children; education and just administrative action.
The ten principal threats to human rights in 2021 that the Report identified, included
1. the unsustainable conditions of poverty, inequality, unemployment, violent crime and declining social, educational and health services that constitute the lived daily experience of a majority of South Africans;
2. any continuation of the severe and arbitrary restrictions of a wide range of basic rights imposed under the Disaster Management Act to deal with the COVID crisis;
3. any repetition of the collapse of law and order experienced in KwaZulu-Natal during July, 2021;
4. the failure of the government to take credible steps to combat state capture and corruption;
5. the adoption of measures in terms of the Expropriation Bill and the Land Courts Bill that might undermine property rights;
6. the continued erosion of language rights resulting from the implementation of the Basic Education Laws Amendment Bill and the failure to implement the Use of Official Languages Act;
7. the further erosion of non-racialism through the imposition of what are, in effect, racial employment quotas under the Employment Equity Amendment Bill;
8. the erosion of the freedom of expression posed by the Prevention and Combatting of Hate Crimes and Hate Speech Bill;
9. failure of service delivery at all levels of government – particularly with regard to education, health, housing and sanitation services; and
10. the unintended consequences of the adoption and implementation of the National Health Insurance Bill.
The main developments affecting human rights that the Report identified in 2021 included the following:
The gravest threat to constitutional values and rights arose from the government’s response to the COVID pandemic and from its declaration of consecutive States of Disaster – rather than a constitutionally defined, limited and regulated State of Emergency. The government’s actions and regulations under the Disaster Management Act circumvented the foundational values of the rule of law and democratic governance by effectively nullifying the authority and oversight role of parliament – and by making provision for the indefinite and arbitrary extension of the state of disaster without any parliamentary oversight or authority. Regulations promulgated under the State of Disaster severely limited fundamental rights and freedoms – including the security of the person, religion, assembly, movement, trade, occupation and profession and education.
However, the government’s actions in response to COVID mirrored similar draconian limitations of basic rights in many constitutional democracies throughout the world.
Unrest in KwaZulu-Natal
Serious unrest in KwaZulu-Natal during July, 2021 revealed the complete failure of the state to foresee – or take action against – anarchic riots and protests that resulted in more than 350 deaths and 50 billion rand of damage. The riots, sparked off by the imprisonment of former President Zuma on contempt of court charges, caused widespread looting and destruction of property, economic disruption and serious inter-communal conflict.
The general failure of governance
The rights of South Africans – across the spectrum – and particularly human dignity, equality and socio-economic rights – were negatively affected by South Africa’s very poor performance in a number of key areas, indicated by
– economic growth of only 9,7% in the decade between 2012 and 2021 compared with population growth of 15%;
– the world’s highest unemployment rate of 35,3% and 46,6% (expanded rate) – (global rate of 6,2%);
– the world’s highest level of inequality of (0,63 on the GINI scale);
– the dependence of 60% of households on government transfers;
– the very poor quality of education. A November, 2020, international survey of the quality of education, rated South Africa 75th of the 76 assessed countries;
– the continuing deterioration of infrastructure and service delivery – ESKOM, PRASA, municipalities, public health care, roads, sewage and water delivery systems…;
– the world’s fourth highest rape rate of 72/100K – (global rate 12,7/100K); and
– one of the world’s highest murder rates at 37/100K – (global rate 7,7/100K).
State Capture Prosecutions
Despite President Ramaphosa’s commitment to combat corruption there was very little progress with the prosecution of those responsible for state capture. Most notably, former President Jacob Zuma managed, once again, to avoid effective imprisonment despite a 15-month sentence that was handed down by the Constitutional Court for contempt of court (see the Rights of Arrested, Detained and Accused Persons in the Report).
Government continued to implement race-based transformation policies to redress persisting inequalities between black, white, Indian and Coloured South Africans. The Employment Equity Amendment Bill will further strengthen the government’s power to impose what will, in effect, be racial employment quotas.
The controversial 18th Constitution Amendment Bill – which was intended to make explicit the possibility of expropriation without compensation – was defeated on 7 December 2021 as a result of the EFF’s decision not to support it. The government, nevertheless, continued with initiatives to promote expropriation without compensation – including the Expropriation Bill and the Land Courts Bill.
Language rights continued to erode as a result of the non-implementation of the Use of Official Languages Act; failure to develop indigenous languages and the erosion of the right to education in the language of choice. The viability of Afrikaans public schools was further threatened by the Basic Education Amendment Bill.
Public health services continued to deteriorate. The government continued to pilot the National Health Insurance Bill through parliament despite its failure to address the continuing decline of public health delivery and the clear unaffordability of the scheme.