UN International Conventions on Apartheid and Enforced Disappearance: Department briefing; with Deputy Minister

Meeting report

The Chairperson said the Department of Justice and Constitutional Development (DJCD), would present to the Committee the "Accession to the International Convention on the Suppression and Punishment of the Crime of Apartheid," and the "International Convention for the Protection of All Persons from Enforced Disappearance." These conventions were adopted by the United Nations General Assembly on 30 November 1973, and were tabled in terms of section 231, sub-section 2, of the Constitution. The agreement would bind the country only after both Houses of Parliament have agreed.

Mr John Jeffrey, Deputy Minister of Justice and Constitutional Development, said government had not moved on these conventions because there was a perception that apartheid was over. However, the crime of apartheid was not apartheid specifically. The definition of apartheid should include similar policies and practices of racial segregation and discrimination. Apartheid may have ended, but similar practices could be implemented in other parts of the world. He said within South Africa, there seemed to be a denialism that apartheid was a crime against humanity and because of this, South Africa had to adopt these conventions.

Adv Tandeka Lujiza, Chief Director: International Legal Relations, DJCD, would lead the presentation.

Accession to the International Convention on the Suppression and Punishment of the Crime of Apartheid.

Adv Lujiza said the strategic focus of the Convention on the Suppression and Punishment of the Crime of Apartheid had its roots in the opposition of the United Nations (UN) to the discriminatory racial policies of the South African apartheid government.

The accession to the Convention was following South Africa’s international obligations and other international instruments to which it was already a party, such as the International Convention for the Elimination of all forms of Racial Discrimination (ICERD). It was aligned with South Africa's medium-term strategic framework’s Priority 6 (“Social cohesion and safe communities) and Priority 7 (“A better Africa and World”).

Further, the accession was in line with:

• Chapter 13 of the National Development Plan (Building a capable state);
• The National Action Plan (NAP) to combat racism, racial discrimination, xenophobia and related intolerance;
• The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (PEPUDA); and
• The Department of Justice and Constitutional Development’s (DJCD's) strategic goal of  the advancement of constitutionalism, human rights and the rule of law

Constitutional implications and progress

The Convention supports the implementation of the rights contained in the Constitution, as it seeks to uphold and enforce the rights to human dignity, freedom and equality. According to the Office of the Chief State Law Advisers' legal opinions, the Convention also aligned with South Africa's domestic law and international obligations.

Financial implications

The accession would not have any financial implications, as the UN treaty bodies were implemented and monitored through existing state membership contributions.

There was therefore a need to assert unambiguously that apartheid was indeed a crime against humanity and that practices associated with apartheid, racial discrimination and other related intolerance would be punished.

Should Parliament approve the accession, the Department of International Relations and Cooperation (DIRCO) would deposit the instrument of accession with the United Nations.

(See presentation)

Discussion

The Chairperson said apartheid had been a very painful part of South Africa's history, and asked why this important Convention had reached Parliament only now. The people of Palestine were currently facing high levels of suppression and apartheid practices which had been going on for some time. South Africa needed to acknowledge that apartheid practices were still happening worldwide. She asked if the Convention would impact current legislation, and if it would need to be changed.

Deputy Minister Jeffery said the Department had felt apartheid was gone and that there was no need to ratify this treaty, and the decision not to ratify had been a political decision. He said there was relevance to ratifying this treaty, and other countries were still adopting it.

Adv Doc Mashabane, Director-General (DG), DJCD, said the general feeling of the Department was that the country had done enough to deal with apartheid, and there was not an urgent need to ratify this treaty. It was now important to ratify it, based on the work South Africa did internationally, particularly in fighting racial discrimination. This would allow it to take the lead in fighting racial discrimination worldwide.

Adv Lujiza said there would not be any implications for acceding to this Convention as existing legislation already addressed it. This treaty would just add to the existing legislation.

International Convention for the Protection of All Persons from Enforced Disappearance

Deputy Minister Jeffery said this treaty was important, and was the first of its kind. This was a more recent treaty, and was on enforced disappearance by the state and its parties. This was aimed at preventing forced disappearance by the state. It had historical context in South Africa, as the apartheid government had been responsible for several people disappearing, some of whom had never been found.

Strategic focus

The Convention defines enforced disappearance as "...the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorisation, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which places such a person outside the protection of the law.”

This was the first universally binding treaty that defined enforced disappearance as a human rights violation. State action was a critical part of what constituted enforced disappearance.

There were five key areas in terms of the obligations of State parties:

• Fight against impunity;
• Investigation and prosecution;
• Prevention and combating of the phenomenon of enforced disappearance;
• Rights of victims; and
• Rights of children -- their abduction and disappearance from parents who had themselves disappeared.

(See presentation)

Discussion

Ms N Ndongeni (ANC, Eastern Cape) asked how both conventions would be incorporated into domestic law, and what changes the Department envisaged with the enforced disappearance treaty. She asked if the Department would train officials, stakeholders or law enforcement officers on these two conventions. Would Article 24 state that victims or their families must receive reparations and adequate compensation, and how would this be implemented?

The Chairperson asked what budget would be needed to implement and ratify these conventions. Which other departments would need to collaborate to implement the enforced disappearance convention?

Adv Lujiza responded that elements of the disappearance treaty were already incorporated into South African law. New elements in the Convention would need to be incorporated into South African law and it would be done the same as why the Rome Statute was incorporated. There would not be new training for law enforcement issues, since the issue of enforced disappearance was already a crime, and the National Prosecuting Authority (NPA) had a unit that dealt with it. If new training was required, the NPA would provide it.

She said Article 24 could be addressed through any court, and it would be up to the courts to decide what type of reparation or compensation was needed.

DM Jeffery said to some extent, the Truth and Reconciliation Commission (TRC) dealt with apartheid disappearances but this was the past whereas the Treaty was forward-looking. The Treaty was two-fold dealing with mechanisms if there ever was a state in South Africa causing people to disappear and sending a message to the world where people are disappearing. He said they would look at the existing laws and costs although he did not think there were any as the state was currently not causing people to disappear. South Africa was behind on ratifying this Treaty in the region and continent– it was interesting to look at which countries have ratified and which have not. Those who have not ratified were involved in renditions during the war on terror such as the United States and United Kingdom.

The Chairperson thanked the Department and agreed it was important to ratify these treaties promptly to comply with international obligations. The Committee would consider the matters in a future meeting.

Committee reports

The Chairperson asked if there were sufficient Committee Members present, since load-shedding had started and Members might have fallen off. This was important for the adoption of the two reports. If there were not enough Members, the Committee would adopt the reports at its next meeting.

The Committee Secretary confirmed a sufficient number of Members in the meeting.

The Chairperson said both reports had been sent to the Members, and they had had discussions dealing with these agreements. She asked if there were any new additions to the reports, and asked Members to move for adoption.

The Committee adopted the following Committee reports:

• Ratification of the Agreement between the Republic of India, the Federation of Brazil and the Republic of South Africa on the India-Brazil-SA (IBSA) fund for the alleviation of poverty and hunger.
• Protocol to the Constitutive Act of the African Union (AU) relating to the Pan-African Parliament of 2014.

The meeting was adjourned.