SA’s failures in the international human-rights system

South Africa is increasingly failing to report to the UN international treaty monitoring bodies, prompting the UN Human Rights Committee to take the exceptional measure of reviewing South Africa in respect of its performance under the International Covenant on Civil and Political Rights (ICCPR) without receiving an input from the government. It has not submitted a single report since ratifying the ICCPR in 1998, yet is obligated to submit a report every four years. This measure is usually reserved for states that have shown a general and systematic disregard for the international human rights system.

South Africa became party to a number of human-rights treaties after 1994 reflecting the country’s commitment to upholding and advancing human-rights standards as a member of the international community. Becoming a member to one of the human-rights treaties places certain obligations on states, but it essentially means that the country must take active steps (by adopting legislation, developing policies and implementing these) to ensure that the rights contained in an international convention are a reality in the state concerned.

Being a party to a human-rights treaty also requires that a state reports on a regular basis to the treaty monitoring body, for example the UN Committee against Torture in respect of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The reporting cycle is either every four or five years, depending on the particular treaty. The basic aim of state reporting is for the international community to review what steps a particular state has taken to meet its obligations under the particular treaty. Following a review, the treaty monitoring body will publish a short report on its assessment of the situation, noting both achievements and areas for further development. It will then formulate realistic recommendations for improvement. Importantly, state reporting is a basis for dialogue between the state and the independent experts of the treaty monitoring body.

During the first round of reporting to the various treaty monitoring bodies, South Africa did in general comply with reporting requirements but since then has generally failed to report. As the situation stands now, South Africa is late in reporting in respect of all the major human-rights treaties, except the Convention on the Elimination of All Forms of Discrimination against Women. There are now two or more reports overdue in respect of the following treaties: Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, International Covenant on Civil and Political Rights (ICCPR), International Convention on the Elimination of All Forms of Racial Discrimination, Convention on the Rights of the Child, and the Convention on the Rights of Persons with Disabilities. These treaties reflect the importance of key democracy and governance features and are aimed at protecting vulnerable groups, such as women, children or people deprived of their liberty.

The ICCPR stands out in respect of reporting because South Africa has never submitted a report to the treaty monitoring body, the Human Rights Committee, after it ratified it in 1998. In view of this, the Human Rights Committee has decided to review South Africa in the absence of a report in March 2015. South Africa also has an unfortunate history with the Human Rights Committee in that it was this committee that found that South Africa violated the right of Bradley McCallum to be free from torture when he was the victim of a brutal mass assault by prison officials at St Alban’s prison in 2005. The South African government was invited on five occasions to respond to the allegations made by McCallum, but failed to do so. In the end, the committee made its decision without input from the government.

While government officials and politicians are eager to tell the public about human rights and our liberal constitution, it appears that they are less than forthcoming when they have to report on an international level on actual measures taken to fulfil constitutional and human-rights treaty obligations. The fact of the matter is that there are indeed a number of notable achievements to report on, such as the recent criminalisation of torture in domestic law and the extent of social security provided to the poor. One is left with the question: How hard can it be to write a report?

The fact that South Africa is late on reporting on all but one of the major human-rights treaties gives the impression that the government is either unwilling or incapable, or both, of producing the required reports. This is, to say the least, embarrassing. It is also not only the UN that is victim to South Africa’s poor reporting but also the African Commission on Human and Peoples’ Rights to which South Africa owes four reports. Regular state reporting to treaty monitoring bodies form an important feature of the international human-rights system as it reflects the priority that a state assigns to its domestic human-rights agenda and the willingness it demonstrates to be transparent and accountable in the eyes of the international community. The history of South Africa’s state reporting then reflects a retrogressive slide away from 1994 when the country was eager to be part of and participate in the international human-rights system to a situation where the government is effectively ignoring its reporting obligations and by implication distancing itself from the requisite international transparency and accountability.

Fortunately, the UN treaty monitoring bodies are not unfamiliar with poor reporting and will therefore do with South Africa what they have done with other poor reporting states, namely to take the exceptional measure of reviewing South Africa without an input from the state. This leaves one not only with a sense of frustration but also shame, because this is not what we foresaw in 1994.