As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
The South African Human Rights Commission is not without its faults: It is not always consistent in the way it tackles human rights issues and because of resource constraints and occasional ineffectual management it sometimes fails to deal speedily and effectively with complaints by ordinary citizens about the infringement of their rights. However, compared to the other institutions set up in terms of the Constitution to promote and protect human rights, it has done sterling work.
Because the Chairperson and all but one of the present Commissioners must retire next month, Parliament has now begun the process of appointing new Commissioners. And there are worrying signs that the ANC majority in Parliament will deal a fatal blow to the Human Rights Commission by “deploying” mediocre ANC party-hacks with little human rights experience to that important body, a body that can play a huge role in helping ordinary (often poor and marginalised) citizens to gain access to justice to help them enforce their rights.
The Constitution states that the Human Rights Commission is independent and that it must act impartially and must exercise its (considerable) powers and perform their functions without fear, favour or prejudice. Parliament has a constitutional duty to assist and protect the Human Rights Commission and to ensure its independence, impartiality, dignity and effectiveness.
An ad hoc committee of Parliament has drawn up a preliminary shortlist of candidates to be interviewed. The list of names nominated by the ANC is, to say the least, underwhelming and troubling.
It includes the names of Benjamin Ntuli (a former ANC MP who failed to be re-elected to Parliament in April); Andre Gaum (a guy who tried to censor the student newspaper at Stellenbosch when he was on the SRC, is an old National Party politician who jumped ship to the ANC and then became deputy Minister of Education, but also failed to make it back to Parliament in April); Mochubela Jacob Seekoe (a former South African Ambassador to Russia with a Chemistry degree from Moscow); Maxwell Moss (a former ANC MP who failed to make it back to Parliament in April) ; Lindiwe Mokate (a former chief executive of the Human Rights Commission who resigned after a disastrous and highly controversial stint there); Lawrence Mushwana (the Public Protector who has shown a spectacular lack of independence and whose Oilgate report was set aside by the Gauteng High Court recently because it failed properly to investigate the complaint implicating the ANC); Wallace Mgoqi (former city manager of Cape Town implicated in several dodgy decisions taken during his tenure there); and Ephraim Mohlankane (who has such a stellar career that a Google search reveals a full zero entries under his name).
What makes this list so deeply depressing is that far more credible and worthy candidates actually applied to become Commissioners.
The list of credible candidates include Andile Mngxitama (a writer and publisher of “Frank Talk”, the latest edition arguing that blacks cannot be racist); Prof Jeremy Sarkin (who used to be a Senior Professor in Public Law at the University of Western Cape and is a member of the UN working group on enforced and involluntary disappearances); Adv Tseliso Thipanyane (current CEO of the Human Rights Commission and former Public Law academic); Dr Janet Cherry (who was detained for 342 days by the apartheid security police, worked for the Truth and Reconciliation Commission and teaches sociology); Dr Bukelwa Hans (former South African Ambassador to Finland); Bishop Paul Verryn (who opened the doors of the Central Methodist Church in Johannesburg to refugees and has worked tirelessly for the poor and the marhinalised); Hanif Valley (lawyer for the Truth Commission and published author); Nozizwe Madladla-Routledge (former deputy minister of Health and general independent spirit); Prof Hussein Solomon (lecturer in political science); and Pritima Osman (who has a long history of doing human rights based NGO work).
(To be fair, the nominations supported by opposition parties also contain the names of a few has-been politicians, but unlike the ANC list, the majority of the individuals nominated by opposition parties have shown at least some knowledge of and commitment to human rights.)
Of course, the mere fact that an individual is a member of the ANC (or any other political party for that matter) should not disqualify that person from a job on the Human Rights Commission. Justice Albie Sachs was a prominent member of the ANC before elevation to the Constitutional Court and he turned out to be a brilliant judge who handed down some of the most progressive judgments of the court.
The question is whether there is a reasonable apprehension that the relevant candidate will be biased and will not act without fear, favour or prejudice. Some of the ANC candidates might well pass this test, but the fact that a large number of failed ANC politicians appear on that party’s list for appointment to the Commission, suggests that the Commission is in danger of becoming no more than a dumping ground for party hacks. This has the potentially fatally to undermine the independence and impartiality of the Commission.
As the Asmal Report made clear, an invigorated and well resourced Human Rights Commission could play a major role in addressing the deeply troubling fact that most South Africans (especially poor and marginalised black South Africans) do not have access to lawyers and cannot enforce their rights and the obligations of others towards them in courts. If a majority of has-been politicians are appointed to the Commission, the Commission will not be able to fulfill this role and all this talk about the transformation of the legal system to provide better access to justice for all South Africans would have been no more than empty rhetoric.
I sincerely hope that cooler heads will prevail and that the ANC will not use its majority in Parliament to nominate candidates who – through their words and actions – have not demonstrated a deep commitment to human rights. The Human Rights Commission can really make a difference. Even if Parliament nominates only individuals who are generally sympathetic to the ANC, there are enough talented individuals on the list to give the Commission at least a shot at being relevant.
However, if the ANC pushes through its current list, the Human Rights Commission will almost certainly become a toothless tiger and the constituency most in need of its services – the poor and the marginalised – would have been sold down the river once again.BACK TO TOP