Month: March 2009

As we celebrate our fifteenth Human Rights Day we should reflect on our failure to build a broadly based human rights culture as a bulwark against the threatened erosion of constitutional rights. A year after the advent of democracy the late legal academic Etienne Mureinik drew attention to the way in which what he termed ‘irrational responses’ to brutal crime posed a threat to human rights.*  Fourteen violent years later attitudes have hardened, and populist politicians garner support with threats to curtail existing rights.  Blaming human rights for our social ills serves to deflect attention from their own responsibility for failing to curb crime.

Seductive as the crime weary public may find exhortations to ‘shoot to kill’, and threats to clamp down on the rights of those arrested, support for such utterances is extremely dangerous. Not only do they undermine the rule of law, but any diminution of existing rights can only facilitate the creeping abuse of power by the state. There is nothing wrong with the law : It is the way that it 8is being implemented (or often not implemented) that presents problems. Transparency and public accountability have diminished in the past decade, with many civil servants showing an arrogant disregard for the taxpayers who fund their salaries. The Land Claims Commission refuses to provide documentation to which the public is entitled and the SAPS fail to respond to queries and to provide information which is in the public interest.

Existing laws giving flesh to the bare bones of constitutional freedoms are crucial since they can be used to hold government accountable, including through class actions.  However, with certain exceptions, the type of civil liberties groupings that drive such processes in well established democracies are not strongly developed in South Africa. Surely the threats which have been made to the freedoms and rights we now take for granted should serve as a wake up call to oppose their erosion?

The topical issue of privacy illustrates the importance of public vigilance and, if necessary, action, to uphold rights.  Section 14 of the Bill of Rights guarantees everyone’s basic human right to privacy yet the eThekwini municipality has aroused public ire by requesting details about the incomes of pensioners applying for property rates rebates. By now legislation detailing how this right will be safeguarded should have been promulgated, but a Protection of Personal Information bill, drafted by the Law Commission, has not yet seen the light of day.

The Ministry of Justice and Constitutional Development, which has dragged its heels for six years over the Protection of Personal Information bill has, however, prioritised the Criminal Law (Forensics Procedures) Amendment Bill 2009. This bill allows for the SAPS to establish a massive DNA database, without providing adequate controls for protecting individual and family privacy.  Public comment on this bill has been scant, in stark contrast to the vigorous lobbying which takes place in other countries about issues relating to DNA.

Nor is there any public debate about the invasion of privacy by the extensive use of surveillance techniques, especially CCTV cameras. That these cameras may prove valuable in catching criminals should not preclude critical debate – any more than the undoubted value of DNA in criminal matters should.  Like DNA though, CCTV footage can be misused.  Are all of those who operate the cameras free of any criminal association? While operators are all required to register with the Private Security Regulatory Authority (PSIRA), the Authority lacks the capacity to deal with huge numbers of illegal security service providers.

Why, when these cameras are ubiquitous in places such as banks are so few criminals caught? What happens to the footage collected? Although the United Kingdom is described as the most watched country on earth, its Data Protection Act attempts to govern the use of CCTV cameras, and stipulates that the public must be informed that they are under surveillance.

To argue, as some might, that privacy concerns should play second fiddle to tackling crime is to miss the point. Both DNA and CCTV footage can be used for criminal purposes, and the failure to pass legislation protecting personal information may facilitate its use by criminals, especially in this computerised age.

Experience elsewhere in the world shows that the defence of constitutional rights is too important to be left to politicians of whichever persuasion. Although South Africa would benefit from more civil liberties bodies, existing groups could be used more effectively for the defence of rights – as in the UK where a wide range of professional bodies, associations and NGOs recently joined forces with Privacy International to oppose a clause in a parliamentary bill posing a threat to privacy.

Human rights issues under threat in our country include freedom of expression, privacy and those linked to criminal justice system. The sooner we organise, the better. As Mureinik warned, beware of irrational responses to violent crime – and of using human rights as a scapegoat for a malfunctioning criminal justice system. Bad things happen when good people remain silent. As individuals or as groups we should form networks – as in the UK – to oppose any diminution of our constitutional rights, no matter how minor it may appear.

*Quote from Etienne Mureinik article ‘Crime panic threatens our rights’ in Mail and Guardian November 24-30 1995

ANC supporters in the Edendale (Pietermaritzburg) and Muden areas allege that meetings they held on Sunday 15 March 2009 were disrupted by large groups of IFP supporters, leading to fears about their safety when campaigning in the run up to the April elections.  It is important that these allegations be dealt with by the political leadership of the ANC and IFP. Since it is also alleged that the SAPS did not take adequate action against those causing the disruptions, SAPS management should also urgently address the question of providing adequate protection for those attending political meetings.

In Edendale, supporters of the ANC Youth League gathered at Naduma High School, Mpumuza Ward 1, having apparently received permission for the meeting from the local traditional leader.  They claim that a small group of IFP supporters arrived and, when the police who were present did nothing to remove them – but merely asked the IFP councillor who was part of the group whether the meeting was legal – their numbers swelled.  One of those present was a local councillor against whom a number of cases of intimidation have been opened in the past, and another was a man who had reportedly been sent for paramilitary training at the Mlaba camp in 2008. The IFP supporters then allegedly behaved in a generally threatening manner towards those in the hall, including by throwing intelezi (traditional medicine) into the crowd – a tactic which inspires fear, especially as it was one which accompanied high levels of violence in the area in the pre-1994 period.

When the SAPS warned that it was not safe for the ANC supporters to continue with their meeting, they moved out of the hall to a nearby venue.  Police reinforcements subsequently arrived, possibly after the intervention of the provincial MEC for Community Safety and Liaison, who had apparently been called. The police formed a corridor between ANC and IFP. However, when the ANC supporters left the meeting to return to their homes they found that the main Mpumuza Road to Sweetwaters had been blocked by IFP supporters, and they had to use a side road.

It is also alleged that, in February, IFP supporters had attempted to stop ANC supporters from registering to vote, by blocking the Mabane Bridge (Sweetwaters) area.  During the 2006 local government elections there were numerous similar complaints of disruption of meetings and intimidation in the Sweetwaters area.

In the incident in Muden, ANC supporters had held a meeting in the Nkanini area and, when they were dispersing, they were allegedly set on by a large group of IFP supporters wielding sticks. Four ANC supporters were reportedly hurt, but not badly enough to need medical attention. Cases have not been opened because victims fear that they will be targeted if they do so. It is alleged that although the police had been informed about the meeting no preventive action was taken.  A local ANC councillor, Jeffrey Ngobese, who opened a case of intimidation against an IFP representative in June 2008, has since survived an apparent attempt on his life. Other ANC supporters in the area have reportedly been threatened and in November 2008 there was an attempt on the life of Thabsile Dladla of the Nhlangane area.

Following yesterday’s incident, the Muden area is very tense, with ANC supporters claiming that they are scared to engage in pre-election canvassing and campaigning.

Political leaders have pledged support for peaceful electioneering, so immediate action is demanded of them, with a view to preventing further similar incidents. SAPS management is responsible for ensuring that all such disruptions are dealt with by monitoring political gatherings and arresting and charging those responsible for life threatening disruptions.