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Type SUBMISSION TO THE TRUTH AND RECONCILIATION COMMISSION CONCERNING THE RELEVANCE OF ECONOMIC, SOCIAL, AND CULTURAL RIGHTS TO THE COMMISSION'S MANDATE
Starting Date 18 March 1997
Names Community Law Centre (UWC), Development Action Group, Legal Resources Centre, Black Sash, Centre for Human Rights (University of Pretoria), NGO National Coalition, National Land Committee, National Literacy Cooperative, Peoples' Dialogue, Urban Sector Network
This submission is being made by the Community Law Centre (UWC), the Development Action Group, the Legal Resources Centre, Black Sash, the Centre for Human Rights (University of Pretoria), the NGO National Coalition, the National Land Committee, the National Literacy Cooperative, the Peoples' Dialogue, and the Urban Sector Network. We make this submission based on the conviction that an analysis of violations of economic, social, and cultural rights under apartheid is crucial for ensuring the implementation and protection of the rights entrenched in our new Constitution. The Truth and Reconciliation Commission ("TRC") is clearly obligated, as set forth in its enabling legislation, to provide that analysis. While it has the discretion to look at a broad range of issues, the TRC cannot ignore violations of economic, social, and cultural rights (e.g. violations that arose out of the enforcement of the pass laws, forced removals, and bantu education) and still fulfill its mandate under the law. Its obligation to look at such violations is clear from the following provisions of its enabling legislation:
1) the definition of "gross violations of human rights," which states that the TRC is to examine violations of all human rights that are the result of acts of killing, abduction, torture, or severe ill treatment -- thus the use of violence to enforce the pass laws, or the killing or torture of a community activist resisting a forced removal, is a violation of economic and social rights that falls within the mandate of the TRC;
2) the definition of "victim," which includes an individual who has suffered a "substantial impairment" of any of his or her human rights as a result of a gross violation of human rights;
3) the requirement that the TRC establish "as complete a picture as possible of the causes, nature, and extent of gross violations of human rights;" and
4) the requirement that the TRC provide "recommendations of measures to prevent" violations of all human rights.
This submission also draws upon South African constitutional law and international human rights law to show how some violations of economic, social, and cultural rights constitute in and of themselves severe ill treatment, and thus are violations that the TRC must acknowledge.
This submission includes specific examples of the type of analysis the TRC should undertake to fulfill its obligations, and show how fulfilling this obligation is possible given the TRC's resources. The TRC should analyse violations of the right to access to housing, freedom of movement, choice of residence, education, health, access to resources, and welfare and social security -- all rights that are part of our new Bill of Rights. A historical analysis of the State's deliberate violation of these rights based on race and gender is crucial to the creation of a human rights culture.
1. Make explicit in its analysis the connection between acts of killing, abduction, torture, and severe ill treatment and violations of economic, social, and cultural rights.
2. Show through illustrative examples how violations of economic, social, and cultural rights were an important cause of gross violations of human rights.
3. Emphasize in its final report the Constitutional imperative of respecting and implementing economic, social, and cultural rights.
4. Provide concrete recommendations, based on its historical analysis, to governmental and non-governmental human rights bodies concerning the protection of all the rights recognized in the Bill of Rights, including economic, social, and cultural rights.
5. Elicit and highlight the connection between gross violations of human rights and violations of economic, social, and cultural rights in its public hearings.
6. Solicit submissions from relevant government ministries, organizations, corporations, and associations concerning the violation of economic, social, and cultural rights under apartheid.
7. Call upon perpetrators of violations of economic, social, and cultural rights to acknowledge their responsibility for past violations, support programs of restitution and reparation, and contribute to the fulfilment and protection of all human rights.
8. Note in its final report that there are individuals and communities that are victims of human rights abuses that are not victims of gross violations of human rights, and emphasize the State's responsibility to recognize and assist such victims.
We are embarking on a new chapter of human rights in this country. The Bill of Rights provides a vision of society that we have chosen to build for us and our children. A full range of economic, social, and cultural rights are for the first time constitutionally protected. In playing an important role in our historic transition, the TRC must emphasize the importance of economic, social, and cultural rights in creating a human rights culture that will ensure that we never revert back to the evils of the past. Indeed, as this submission shows, the TRC is obligated by law to do so. SUBMISSION TO THE TRUTH AND RECONCILIATION COMMISSION
The organisations making this submission have a history and track-record in the promotion and protection of human rights in South Africa. We recognise that all human rights - civil, political, economic, social and cultural - are interrelated and interdependent. Consequently, we believe that human rights should be treated in an integrated and holistic manner by all institutions involved in their protection. Our approach is that of the new South Africa. The recently enacted Constitution, which was supported by the vast majority of political parties, adopts a holistic view of human rights, recognizing economic, social, cultural, civil, and political rights. Like the new South Africa, the African region and the international community also take a holistic view of human rights.
The purpose of this submission is to explain why the Truth and Reconciliation Commission is obligated by its enabling statute to examine certain violations of economic, social and cultural rights, and to suggest ways that the Commission can fulfill that obligation.
Examining certain violations of economic, social, and cultural rights will not appreciably increase the workload of the Commission. Much of the information required is already available to the Commission. For example, the submission on education from the National Literacy Cooperation, on gender from the University of the Witwatersrand, and the anticipated submissions from the medical and journalistic professions include useful information and analysis on violations of economic, social, and cultural rights relevant to the Commission's mandate.
The Promotion of National Unity and Reconciliation Act (hereinafter referred to as the "TRC Act") clearly requires that the Commission investigate and examine certain violations of economic, social and cultural rights. The Commission's obligation is clear from the following sections of the Act:
Section 1(ix), which defines gross violations of human rights as "the violation of human rights through the killing, abduction, torture, or severe ill-treatment of any person and any attempt ... to commit such an act" (emphasis added). Thus the main focus of the Commission is on the violation of all human rights, including economic, social, and cultural rights, that were effected through the actual or attempted killing, abduction, torture, or severe ill-treatment;
Section 1(xix) which defines a victim as a person or group of persons who "suffered harm in the form of .... a substantial impairment of human rights --- (i) as a result of a gross violation of human rights" or as a result of an amnestied act, and those who suffered a substantial impairment of their human rights as a result of intervening to assist other victims. Thus the definition of victim complements the definition of gross violation of human rights, indicating that violations of other human rights, including economic, social, and cultural rights, that were the result of an act of killing, abduction, torture, or severe ill treatment, or that were the result of an act for which someone has received amnesty, or that were the result of an effort to assist victims of such acts, are directly within the mandate of the Commission's work.
Section 3(1)(a), which sets forth as one of the major objectives of the Commission the establishment of "as complete a picture as possible of the causes, nature, and extent of the gross violations of human rights," including "the antecedents, circumstances, factors, and context of such violations." Recognition of the economic, social and cultural policies of apartheid which led to gross violations of human rights is essential to any discussion of the causes, antecedents, circumstances, factors, and context of such violations. The nature and extent of gross violations include their immediate impact on economic, social and cultural rights; and
Section 3(1)(d), which provides that the Commission is to compile a report of its activities and findings, including "recommendations of measures to prevent the future violations of human rights." Thus the Commission must provide recommendations for preventing violations of all human rights, and not just gross violations of human rights. As recognized in the Constitution, the African Charter of Human and Peoples' Rights, the International Bill of Rights, and most of the recent major international human rights treaties, human rights include economic social, and cultural rights.
It is clearly not intended that the Commission examine each and every violation of human rights -- or for that matter each and every violation that qualifies as a gross violation of human rights -- that occurred during the relevant period of inquiry, and we do not here suggest otherwise. The Commission is obligated, however, to focus on violations of "human rights" brought about through the specific acts of killing, abduction, torture and severe ill-treatment. The Commission is obligated to make recommendations for reparations to persons who suffered a "substantial impairment of human rights" through a gross violation of human rights or amnestied act, or as a result of attempting to assist such individuals. The Commission is obligated to investigate and report on the economic, social, and cultural context that led to gross violations of human rights. The Commission is obligated to make recommendations to the President concerning the protection of all human rights, and not just those that qualify as gross violations of human rights. The Commission has already shown that it recognizes these obligations, by, for example, soliciting submissions from the media on their role under apartheid, thus emphasizing the importance of both freedom of expression and the regulatory functions of the media in understanding and curtailing violations of human rights.
In this submission, we discuss briefly the three areas where it is clear the Commission is obligated to take notice of violations of economic, social, and cultural rights; provide some brief examples of the types of economic, social, and cultural rights that are implicated by certain gross violations; and suggest ways that the Commission can fulfill its obligation to look at all violations of human rights.
In the first section, we show how the definition of gross violations of human rights includes certain violations of economic, social, and cultural rights. In the second section, we show how certain violations of economic, social, and cultural rights constitute severe ill treatment. In the third section we show how violations of economic, social, and cultural rights are part of the causes, nature, and extent of gross violations of human rights. In the fourth section we show how an examination of economic, social, and cultural rights is crucial for national efforts to prevent future gross violations of human rights. In the fifth section we provide some brief examples to show the relevance of violations of economic, social, and cultural rights to the work of the Commission. Finally, in the sixth section we show how taking into account violations of economic, social, and cultural rights will not appreciably increase the workload of the Commission.
With this submission, we do not purport to be providing the Commission with an exhaustive discussion of the legal and other arguments we raise, nor with an exhaustive list of the implications of our conclusions, nor with an exhaustive list of the ways the Commission can fulfill its obligations. These and other issues have either already been sufficiently discussed in other submissions to the Commission, or we anticipate will be discussed in future submissions.
One of the three core functions of the Commission's work is the inquiry into "gross violations of human rights, including violations which were part of a systematic pattern of abuse." It is clear that the Commission is to focus primarily on those violations of human rights that involved killing, abduction, torture, or severe ill treatment. Thus the Commission is not obligated to undertake extensive inquiries into violations of universally recognized civil and political rights, such as equality before the law, privacy, freedom of expression, and the opportunity to vote and otherwise participate in public life. Nor is the Commission required to undertake extensive inquiries into violations of universally recognized economic, social, and cultural rights, such as formation of trade unions, protection of the family, and the enjoyment of a minimum standard of living. The Commission is obviously not obligated to investigate and analyse thoroughly all violations of these and other rights. To impose such an obligation on the Commission would make it a virtual certainty that its job would not be completed within its two year life-span. By the terms of the TRC Act, however, the Commission may not ignore the consequences of the violation of such rights in analysing the causes and antecedents of gross violations of human rights, nor may it ignore the effect of killings, abductions, torture, and severe ill treatment on the enjoyment of those same rights. As the definition of gross violations of human rights makes clear, the Commission is to focus on violations of all types of human rights that resulted from acts of killing, abduction, torture, and severe ill treatment. Thus an analysis of the effect of a particular killing on an individual or group's right to education or health care is clearly part of the Commission's mandate.
"Human rights" is not defined in the TRC Act, so the Commission must look to other sources for a working definition. There are three sources for the definition of human rights relevant to the Commission: 1) Chapter 2 of the Constitution of the Republic of South Africa; 2) the African Charter of Human and People's Rights; and 3) the International Bill of Rights, consisting of the Universal Declaration of Human Rights; the International Covenant on Economic, Social, and Cultural Rights; and the International Covenant on Civil and Political Rights. The first is the authoritative statement of what constitutes human rights within the new South African constitutional system; the second is the authoritative statement of what constitutes human rights at the African regional level; and the third is the authoritative statement of such rights at the international level. Those rights include prohibitions against invasions of a person's bodily integrity (i.e., torture, killing), economic, social, and cultural rights, and civil and political rights. South Africa has joined the rest of Africa and the international community in recognizing that the full range of civil, political, economic, social, and cultural rights are inter-related, and that the violation of any of them affects the fulfilment of the others.
In its inquiries concerning gross violations of human rights, the Commission is therefore obligated to examine violations of all human rights that occurred as a result of killings, abductions, torture, and severe ill treatment. Thus the killing of a student leader who was advocating for better schools in his community has an effect on the right to education guaranteed in the Constitution and under international law. The loss of the student leader directly affects the ability of the rest of the community to attain this universally recognized right. Those that killed the student leader may have had as one of their motives the enforcement of the "bantu education" policy. Thus the killing of the student leader may violate any number of human rights, including the prohibition against summary execution, the right to education, and the right to freely associate, to name only three.
The Commission will soon be hearing testimony on the destruction of KTC, and the desperate efforts of thousands of people to defend their right to access to housing. The right to access to adequate housing is entrenched in our new Constitution at Section 26. Furthermore, no one may be evicted from their home or have their home demolished without an order of court made after considering all the relevant circumstances, and no law may permit arbitrary evictions. The residents of the satellite camps of Crossroads and KTC were not only evicted without a court order, but their homes were burnt and over 60 people were killed during attacks on their homes. Thousands of people had their right to access to adequate housing violated through killings and other severe ill treatment. One of the causes of those killings was a deliberate government policy to deny individuals the right to access to housing, freedom of movement, and right of residence.
One of the means of violating someone's human rights on which the Commission is to focus is the "severe ill treatment" of a person. While we suggest here that the concept of severe ill treatment should encompass some violations of economic, social and cultural rights, it is clear that the Commission's obligation to look at violations of economic, social, and cultural rights is not dependent on such an interpretation of severe ill treatment.
The Act provides little guidance on what is meant by severe ill treatment. The Constitution prohibits "cruel, inhuman, or degrading treatment or punishment," and one of the first decisions of the Constitutional Court held that juvenile whipping constitutes cruel, inhuman, or degrading punishment. At the international level, human rights treaties have language similar to that found in our Constitution. Interpretations of these phrases by international tribunals and jurists provide useful guidance in interpreting severe ill treatment. International tribunals and jurists have found the following to constitute cruel, inhuman, or degrading treatment:
(a) Forcing detainees to stand for long periods of time; subjecting detainees to sights and sounds that have the effect or intent of breaking down their resistance and will; or inflicting severe mental or physical stress on detainees in order to obtain information or confession.
(b) Expulsion from, or refusal of admission to, one's own country according to a discriminatory application of law; or in order intentionally to inflict physical or mental suffering; or without the necessary due process.
(c) Deprivation of certain basic needs of the person, such as the need for food, water, or sleep, if the pain or suffering inflicted is not severe enough to constitute torture.
(d) Deliberate indifference to a detainee's medical needs and deprivation of the basic elements of adequate medical treatment.
(g) Delay in removing a condemned prisoner from a "death cell" after stay of execution has been granted.
A BAD [Bantu Education Dept.] man gave me a stand which had four poles at the corners and said that was where I could build my house. I was given a tent to erect on the stand. As soon as we had put a roof on the first hut, the tents were taken away for someone else.
Statement of a woman whose family was moved from a white farm to Sahlumbe. Quoted from Surplus People Project, The Surplus People: Forced Removals in South Africa 345 (1985).
Based on the interpretation of cruel, inhuman, or degrading treatment by numerous international tribunals and jurists, we argue that the deliberate impoverishment of an individual brought about through the use of force amounts to severe ill treatment. Thus, a family that was forcibly moved to a location with no running water, inadequate or no latrines, minimal if any medical care, and substandard or no housing, suffered severe ill treatment. Although we believe that the vast majority of black South Africans who live in poverty, and the vast majority of women who are deliberately denied access to basic opportunities and societal resources, are victims of severe ill treatment, it is not necessary for the Commission to accept that view in order to find that certain extreme and deliberate acts constitute severe ill treatment.
The deliberate application of force by the government that directly results in a lowering of living standards, and that is undertaken with wanton disregard for the well-being of the individuals effected, must constitute severe ill treatment. Deliberate government policy that affirmatively denies, on the basis of race, gender, or class access to basic societal resources, and that deliberately provides unequal amounts and quality of such goods based on race or gender, constitutes severe ill treatment. As with all of the types of violations examined by the Commission, this does not mean that each and every forced removal needs to be thoroughly examined. It does mean, as we suggest below, that the Commission is obligated to examine some examples of such violations, and to include a discussion of the extent of such violations in its final report.
The Commission is to compile "as complete a picture as possible of the causes, nature and extent of the gross violations of human rights," including "the antecedents, circumstances, factors, and context of such violations." Such a picture would be incomplete without the inclusion of violations of economic, social, and cultural rights as a cause of gross violations of human rights. In addition, the nature and extent of the gross violations include the violation of a large number of economic, social, and cultural rights, in addition to civil and political rights. Finally, the violation of economic, social and cultural rights are certainly an antecedent to, and constitute some of the circumstances, factors, and context of, such gross violations.
The systematic violation of all human rights - political, civil, economic, social and cultural - in South Africa under apartheid created the context which resulted in gross violations of human rights. Through systematic policies and legislation the government deprived black people in this country of their right to vote, the right to freedom of speech and assembly, and basic labour rights. It also deprived the majority of its citizens of their fundamental right to live where they please, work, and receive education and social security without discrimination on the grounds of race or gender. Large numbers of people were subjected to discriminatory and arbitrary forced evictions, demolitions and resettlements in accordance with the dictates of apartheid ideologues and planners.
This thing came so sudden upon us that I cannot tell you what happened, this thing came so sudden upon us, yes. We did not know that we are coming here, we did not know where we are going to ...Yes, they did tell us but it took so long before they came to us. When they came to us they stalked us. They stalked us because they did not say to us which day or which day. When they came to us, they came with guns and police and with all sorts of things they came to us. And then we see that we are here. Then we had no choice, the guns were behind us. They did not say anything, they just threw our belongings in and they broke off as they went. There is nothing to say or the gun is through your head. If I just talk, the gun is through my head. Soldiers and everything were there. What can we say now, we are not used to these things. Then we have to get in, what can we do. They shoot us dead, then we have to get in, what can we do. No they did not say anything, they just said get in, so that we are here today. We did not know, we still do not know this place...And when we came here, they dumped our things, just dumped our things so that we are still here. What can we do now, we can do nothing. We can do nothing. What can we do?
I saw docile squatters ... dragged by their clothing and beaten with batons and sticks during the second raid on Crossroads...in less than six hours. Passes were grabbed by the police and other officials and thrown to the ground or temporarily confiscated. Ten policemen were injured when they were stoned in an earlier raid....A squatter had been shot dead and soon a baby was to die on his mother's back as they were trampled by panic-stricken squatters attempting to escape yet another teargas attack...
To enforce such deliberately inhumane policies, the State resorted to killings, abductions, torture, and severe ill treatment. Thus the violation of these economic, social, and cultural rights was one of the causes that led to the more immediate violations that are the main focus of the Commission's work. Resistance to these oppressive laws and policies -- through demonstrations, political organizing, and other forms of protest -- provoked in turn further gross violations. In addition, the nature and extent of the violations of economic, social, and cultural rights sometimes amounted to gross violations of human rights. Thus, to use an earlier example, the killing of the student leader not only violated that individual's right to life, but also a range of other rights of that individual and the community from which she came. The submission on gender prepared by Dr. Sheila Meintjes and Beth Goldblatt from the University of the Witwatersrand provides a number of examples of the range of human rights violations that resulted from an act of killing, abduction, torture, or severe ill treatment.
Finally, the Commission must analyse the full range of the types of violations that occurred during the past in order to make useful recommendations to the President concerning the prevention of violations of all human rights. An understanding of violations of economic, social, and cultural rights under apartheid is crucial for understanding the causes, nature, and extent of gross violations of human rights, and thus crucial to developing recommendations for preventing future human rights violations.
The TRC Act clearly contemplates that the Commission will consider all human rights in formulating its recommendations. As noted above, the South African definition of human rights embodied in the new Constitution -- which was supported by all sectors of the political and legal establishment -- embraces economic, social, and cultural rights. South Africa, by integrating civil, political, economic, social, and cultural rights in its own Bill of Rights, recognizes the importance of all of these rights to the creation of a just and democratic society.
The human rights bodies established under the new Constitution include in their mandate all human rights -- including economic, social, and cultural rights. Thus, the Human Rights Commission is specifically empowered to promote respect for and protection of all human rights. The Commission for the Promotion and Protection of the Rights of Cultural, Religious, and Linguistic Communities is to promote the human rights of specific communities. The Commission for Gender Equality is empowered to look at violations specifically affecting women. Statutory bodies have also been created to focus on specific areas of economic and social rights, such as the Land Claims Commission. In directing that the Commission look at all human rights, the Parliament envisioned that the Commission would provide an analytical background plus concrete and useful recommendations to the existing human rights bodies for the protection of all human rights. These new Constitutional and statutory bodies do not have jurisdiction to investigate abuses that occurred prior to 1994. It is the Commission, therefore, which is to provide the historical analysis for formulating policy to move our society forward to a just and democratic government. An analysis of past violations of all human rights is thus crucial in formulating meaningful recommendations to these bodies.
We present here brief illustrations of how economic, social, and cultural rights can be integrated into the Commission's work. It is by no means an exhaustive list, but we offer it to provide what we hope are useful examples of how the Commission can fulfill its obligations under the TRC Act.
Education -- The right to a minimum level of education and the obligation of the state to make further education progressively available and accessible is entrenched in the Constitution and is echoed in the African Charter on Human and People's Rights, and the International Bill of Rights. The violation of the right to education is part of the cause of many gross violations of human rights. Violations of the right to education also contributed to the increased resistance of the population to the state, resulting in additional incidents of gross violations. The submission from the National Literacy Cooperation and others sets forth both the violation of the right to education under apartheid (an important component of the context of gross violations of human rights), and also provides examples of violations of the right to education through killings, abduction, torture, and severe ill treatment. That submission also provides information on how the denial of the right to education led to other human rights abuses, including gross violations of human rights.
The struggle of South Africans to attain minimal standards of education resulted in gross violations of human rights. The massacre of innocent school children peaceably marching in Soweto in 1976 is a well-known example of a gross violation of human rights involving education rights. The killing, torture, abduction, or severe ill treatment of a child affects that child's access to education.
The legacy of deliberately inferior education for a vast majority of our country's citizens based on race and gender has vast implications for the future of South Africa and the protection of human rights. It is thus crucial that the Commission note where applicable the extent that gross violations were caused by such inferior education, and give some sense of the extent such gross violations contributed to the failure to provide everyone with the education to which they are entitled.
Housing, Residence, and Freedom of Movement -- The right to access to adequate housing, to reside anywhere in the country, and to freely move throughout the country, is explicitly protected in the Constitution, and in the International Bill of Rights.
Violations of the right to access to housing, and freedom of movement and residence, include the policy of forced removals. It is estimated that from 1960 to 1983, 3.5 million people were forcibly relocated. In implementing this policy, and in responding to resistance to it, numerous people were killed, tortured, abducted and severely ill treated. In addition, the implementation of the policy itself, as argued above, in many cases constituted severe ill treatment. Forced removals also led to the destabilization of numerous communities, creating individuals with little or no stake in their communities, and creating a greater willingness to resort to violence.
Forced removals, especially of the elderly, infirm, and disabled, may give rise to severe ill treatment. Documented cases of individuals who died immediately before or after a forced removal because of the government's wanton disregard of their health and well-being undoubtedly constitute severe ill treatment. The deliberate and forced removal to a place with no clean water, no sanitation, and inadequate or no housing constitutes severe ill treatment. The Commission does not have to agree that people who live in severe poverty with inadequate facilities -- as many did and still continue to do -- are victims of severe ill treatment in order to find that a specific government act that forced an individual into such a situation amounts to severe ill treatment. We submit that government action that takes a group of people who were living in one place and forcibly removes them to a different location, constitutes severe ill treatment as defined in the TRC Act.
Examples of the violation of the right to access to housing and the right to freedom of movement and residence through forced removals that involved gross violations of human rights include:
2. The destruction of the Crossroads satellite camps and KTC, which resulted in over sixty deaths. (See brief description above at pages 12-13.)
3. The removal of people to Sahlumbe and Onverwacht. The residents of Sahlumbe were given tents and instructed to build their own houses. There were no latrines, and water was obtained from the distant Tugela river. The settlement of Onverwacht consisted of 100,000 people in 1981. There was only one medical clinic, one police station, one supermarket, and nineteen schools that served approximately 20,000 students.
4. The forced removal of the Bakubung people. Some were arrested and tortured as a direct result of their resistance. Thus violations of the Bakubung people's right to housing, freedom of movement and residence were implemented through the use of killing, abduction and torture.
5. The destruction of Langa, including the detention of community leaders as well as those who resisted removal, similarly constitutes a gross violation of human rights involving the right to access to adequate housing.
6. The killing of Saul Mkhize in Driefontein, as part of the resistance to forced removal of this "black spot." Mr. Mkhize was killed because of his leadership role in the resistance to the forced removal. In other words, it was his advocacy for the right to access to adequate housing and freedom of choice of residence for his community that resulted in his killing.
7. Similar violations can be found in the treatment of the people of the following communities: Mfengu, Moutse, Braklaagte, Leeufontein, District Six, Pageview, and Fordsburg.
These are examples not only of gross violations themselves, but also of crucial parts of the antecedents, causes and context of a wide range of gross violations that occurred during the relevant period. By focusing on some of these violations, and by underscoring the connection between them and the right to housing, the Commission will assist us in understanding the violations of the past and better prepare us for preventing such violations in the future.
Health Care -- The right to adequate health care is entrenched in the Constitution, the African Charter, and the International Bill of Rights. The most obvious examples of the violation of this right concern the lack of medical attention provided to those in the government's custody. The deliberate failure to provide medical attention to those who had been tortured or severely ill-treated illustrates the intersection between the right to adequate health care and gross violations of human rights. The case of Steve Biko is only one prominent example of many such occurrences. The death of doctors, such as Neil Aggett and Fabian Ribeiro, raise issues regarding the right to health similar to those that the killing of the student leader raised for the right to education. The deliberate refusal of an ambulance legally reserved for white people to stop and provide medical attention to a black patient constitutes severe ill-treatment. We realize that the medical profession is in the process of preparing a submission to the Commission on its role during the apartheid years, so we direct the attention of the Commission to that submission for a more thorough discussion of the types of issues raised by the acts and omissions of that profession.
Welfare and Social Security. Apartheid created massive inequalities between people based on race and gender. Patterns of violence under apartheid that constitute gross violations of human rights contributed to these inequalities, and these inequalities, in turn, comprise part of the causes of and antecedents to gross violations of human rights. While we do not discuss here the complicated dynamic between poverty, discrimination, and violence, we would refer the Commission to other submissions it has already received, and note some recent statistics compiled by the government. In August 1996, the Lund Committee on Child and Family Support noted that South Africa is characterized by extremes of wealth and of inequality, that 95% of the poor in South Africa are African, and that many of the poorest households are those headed by women. The report also noted that an estimated 2.3 million South Africans do not receive a basic level of nutrition, including 87% of all African children under the age of 12. While a thorough analysis of the causes and effects of such inequalities is beyond the scope of the Commission's mandate, the causal effect of such inequalities on incidents of gross violations of human rights, and the perpetuation of such inequalities through killings, abductions, torture, and severe ill treatment, clearly are part of the Commission's mandate.
Allocation of Services. The distribution of resources under apartheid deliberately denied basic services to individuals based on race and gender. The deliberate denial of basic services in some cases certainly constitutes severe ill treatment, especially where it is clear that the denial was not caused by limited resources or technology, but was based on a deliberate policy of discrimination. The perpetrators of such violations include the numerous statutory bodies specifically empowered to provide such basic goods and services to the country. For example,
1. Water. The Minister of Water Affairs was specifically empowered to distribute water from a government waterworks to any person for any purpose approved by the Minister. Notwithstanding this, water was distributed in such a manner that the vast majority of white group areas had houses serviced by running water while the majority in other areas often had no running water and had to walk miles for access to water.
2. Electricity. Legislation provided for the provision of electricity throughout the country. Eskom was empowered "to investigate new or additional facilities for the supply of electricity within any area ... so as to stimulate the provision, wherever required, of a cheap and abundant supply of electricity. Local authorities were licensed to provide electricity, and were obligated to "supply electricity within the area of supply mentioned in his license to every applicant who is in a position to make satisfactory arrangements for payment therefor." This mandate was carried out in a deliberate fashion so that powerlines ran over but not into many townships, while citizens in white areas enjoyed the benefits of those same powerlines.
3. Planning. Government policy and planning under apartheid was specifically designed to foster "separate development," which in effect meant the diversion of most of societies resources to the white population, and mostly to the white male population. Such planning included structural inequalities based on race and gender in access to and distribution of property; the brutal dislocation and forced removal of entire communities; grossly unequal access to economic opportunities and services based on race and gender; and gross disparities in access to residential, recreational, and community facilities. The deliberate allocation of burdens and benefits under apartheid -- through, for example, taxation; access to land, property, and other economic resources; and provision of municipal services -- were implemented through specific acts of gross violations of human rights, and are an important part of the cause of such violations.
A similar inquiry to the three outlined above can be undertaken with respect to a variety of government policies. For example, government policy regarding the denial of post and telecommunication services, and the effect that such denial had on the provision of health care and other basic rights, is another area where incidents of severe ill treatment can probably be found.
In addition to being directly responsible for acts that constitute severe ill treatment, many of the parastatals also developed quasi-private security forces that were directly involved in acts of killing, abduction, torture, and severe ill treatment. Thus in many cases the basic rights to water, health care, and a minimal level of subsistence were violated through such acts.
VI. Impact of Including Violations of Economic, Social, and Cultural Rights on the Commission's Work
The inclusion of violations of economic, social, and cultural rights as set forth above will not appreciably increase the current workload of the Commission. As mentioned above, much of the information needed for such an analysis has already been submitted to the Commission, or is in the process of being submitted to the Commission. The inclusion of such violations will also not have an appreciable affect on the number of individuals who qualify as victims under the TRC Act, since as noted above victims include those who suffered a "substantial impairment of human rights" through a gross violation of human rights, or through an act for which amnesty has been granted. Many individuals who were denied adequate housing suffered a violation of their human rights. Those individuals will qualify for reparations under the terms of the TRC Act only if they can establish that the means by which they were made a victim included an act of killing, abduction, torture, or severe ill-treatment, or was the result of an act for which someone has been granted amnesty.
The Commission has achieved much in its first year of existence. The information it has elicited concerning killings, tortures, and other violent acts in our past has contributed greatly to our understanding of the suffering that occurred under apartheid. The purpose of this submission is to emphasize the Commission's obligation to provide us with an understanding of why these violations occurred, and to help us to understand their occurrence within a political, economic, social, and cultural context. The vast majority of black people in this country still live under abject conditions that were deliberately created under apartheid. South Africa enjoys the unenviable distinction of having one of the worst disparities in the world in distribution of income, wealth, and resources based on race and gender. Conditions that fuelled resistance and subsequent reactions from the state led to many of the gross violations of human rights the Commission is examining. It is our view that until the personal and social consequences of the socio-economic discrimination and deprivation inflicted on black people in this country is properly acknowledged, the ultimate objectives of national unity and reconciliation will not be achieved. This does not mean that the Commission must provide a thorough analysis of all the violations of human rights that occurred in our past. It does mean, however, that the Commission must provide an analytical framework for us as a society to ensure the creation of a durable human rights culture that protects all our rights. The socio-economic legacy of apartheid is a daily reality for millions of people in South Africa struggling to obtain access to adequate housing, health care, education, food, water and social security. It is by and for those millions that the new South Africa has been formed. We owe to all South Africans, and to the legacy of past suffering and the reality of the suffering that continues, a clear statement of the devastating consequences of keeping the vast majority of our population in such abject conditions.
It is clear that the Commission is obligated under the Act to examine violations of economic, social, and cultural rights, and that focusing on such violations will enhance the usefulness and relevance of the Commission's work, its final report, and its final recommendations. It is also clear that the Commission has neither the time nor the resources to undertake a thorough and systematic investigation and analysis of all of the violations of human rights that occurred under apartheid. We do not here argue that it should. We do argue, however, that the Commission cannot escape its obligations as clearly articulated in the TRC Act. The Commission should, therefore, at least do the following:
1. In its analysis of gross violations of human rights, make the connection between such acts and all of the violations that resulted. Thus, to use an example, the analysis of the killing of a student leader should include references to the right to education and how its violation contributed to the killing, and how the killing resulted in further violations of that right.
2. In its analysis of the past, show how the violation of economic, social, and cultural rights was a direct cause of gross violations of human rights. This can be done by focusing on one or two illustrative examples of each type of violation. Thus the final report should include one or two case studies of the inter-relationship of gross violations of human rights and the right to housing, education, health care, etc.
3. In its final report, note the Constitutional imperative of respecting and implementing economic, social and cultural rights in the new South Africa, and impress upon the government the importance of legislative and other measures, including appropriate reparations, to ensure the protection and fulfilment of these rights.
4. In its final recommendations concerning the protection of human rights in South Africa, draw upon our history of human rights violations to formulate meaningful recommendations to the various constitutional and statutory human rights bodies concerning the protection of all human rights recognized in our Constitution. This would include organizations involved in education, housing, and social security. We know that the Commission is already consulting with those bodies, and urge that such consultations continue for the purpose of formulating realistic and meaningful recommendations to such bodies.
5. In public hearings on gross violations of human rights, elicit the connection between the incidents of killing, abduction, torture, or severe ill treatment and economic, social and cultural rights (as well as civil and political rights) to create a holistic picture of the abuses of the past.
6. Solicit submissions from relevant ministries, organizations and associations concerning the violation of economic, social, and cultural rights. Such organizations might include the parastatals, such as Eskom, Telkom, and Transnet (for and on behalf of the former South African Railways and Harbors). Since many of these organizations have publicly committed themselves to the new Constitution and its Bill of Rights, they should be approached to submit information either to the Commission or another suitable body on their past violations of human rights and their current plans to remedy such past violations. This falls squarely within the Commission's mandate to further reconciliation between perpetrators and victims, and between citizen and state.
7. Call upon the perpetrators of violations of economic, social, and cultural rights (a) to admit publicly their role in and responsibility for these violations, (b) to pledge publicly that neither they nor their organizations will commit such violations in the future, and (c) to commit publicly to contributing to a program of reparations (including increased provision of relevant services) to victims of their past violations.
8. Note that there are individuals who are victims of human rights violations but who are not victims of gross violations of human rights, and that it is incumbent upon the state to recognize and assist such individuals by means other than reparations as set forth in the TRC Act.
The overall purpose of the TRC during this transition period has been clear from the start: to provide an authoritative base for not only understanding what violations occurred, but to begin to understand why they occurred, and to make initial recommendations aimed at preventing their future occurrence. An examination of the violation of economic, social and cultural rights during the relevant period is thus a crucial part of the Commission's task.
We have emphasized the Commission's clear obligation under the TRC Act to examine certain violations of economic, social, and cultural rights, and to offer a few suggestions of how, given its current resources and activities, the Commission can fulfill that obligation. The Commission has already received a number of submissions that expand upon many of the issues we raise here, and will undoubtedly through its own solicitations and through the activities of other organizations, be receiving additional information that will expand upon what we have only briefly touched on here. We only make this submission to underscore the importance to the Commission's work of looking at violations of all human rights as required by its enabling legislation. We would, of course, be willing to discuss the issues raised in this memo with interested Commissioners and staff, and remain eager to assist, given our own limited resources, the Commission in fulfilling its important mandate.