Addendem: The South African Human Rights
The South African Human Rights Commission (SAHRC)
and is one of a number of bodies established by the Constitution
to protect and promote constitutional rights.
Significantly the Constitution sets up separate Commissions to
monitor, investigate, research, educate, lobby, advise and report
on issues concerning gender equality and the Promotion and Protection
of the Rights of Cultural, Religious and Linguistic Communities.
In addition, the SAHRC derives its powers from the Human Rights
Commission Act of 1994.
The SAHRC works with government, civil society
and individuals, both nationally and abroad, to fulfil its Constitutional
mandate and serves as both a watchdog and a visible route through
which people can access their rights.
While the handling and management of complaints
concerning human rights violations lies at the heart of the SAHRC's
work, it also aims to create a national culture of human rights
through its advocacy, research and legal functions. It also implements,
monitors and develops standards of human rights law. Moreover,
the SAHRC works closely with Human Rights Commissions throughout
Africa and the world.
The functions of the SAHRC are set out in section
184 of the SA Constitution which states that the Human Rights
Commission must promote respect for human rights and a culture
of human rights; promote the protection, development and attainment
of human rights; and monitor and assess the observance of human
rights in the Republic.
The powers of the SAHRC are set out in Section
184(2) of the SA Constitution and the Human Rights Commission
Act as necessary to perform its functions. These include the powers
to investigate and to report on the observance of human rights;
to take steps to secure appropriate redress where human rights
have been violated; to carry out research; and to educate.
Moreoever, each year, the Human Rights Commission
must require relevant organs of state to provide the Commission
with information on the measures that they have taken towards
the realisation of the rights in the Bill of Rights concerning
housing, health care, food, water, social security, education
and the environment.
Specific powers of investigation and enforcement
The Human Rights Commission Act of 1994 specifies
that the Commission has the power to resolve any dispute or to
rectify any act or omission emanating from, or constituting a
violation of or threat to, any fundamental right through negotiation,
mediation and conciliation. It also has the power to litigate
on behalf of complainants or in its own name.
In addition the SAHRC has extensive powers of
investigation for dealing with human rights violations. These
include the power to subpoena witnesses, the power to issue search
warrants and powers of seizure and the power to hold formal hearings
of evidence during its investigations.
The SAHRC has also established links with other
independent institutions, to which some matters are referred if
these institutions are better placed to deal with them.
The SAHRC is made up of two sections: the Commission,
which sets out policy and a Secretariat, which implements policy.
The Chairperson is overall head, and the Chief Executive Officer
(CEO) is head of the Secretariat, accountable for the finances
of the SAHRC and has responsibility for the employment of staff.
As set out in Section 5 of the Human Rights
Commission Act, the SAHRC has established standing committees
to advise and assist it in its work. The SAHRC appoints the members
of the standing committees, each of which is chaired by a Commissioner.
To facilitate the work of the Commission, the
Secretariat is divided into departments: Legal Services: Research
and Documentation; the Advocacy Unit; and Finance and Administration.
The SAHRC has also established provincial offices to ensure its
services are widely accessible.
The programme activities of the SAHRC are set
out in the SAHRC's Business Plan.
The South African Constitution stipulates that
the SAHRC, as with all constitutional bodies designed to protect
and enforce fundamental rights in South African, should be fully
independent and impartial.
SECTION 181 (2)-(4)
SA CONSTITUTION STIPULATES
(2) These institutions are independent and subject only
to the Constitution and the law, and they must be impartial and
must exercise their powers and perform their functions without
fear, favour or prejudice.
(3) Other organs of state, through legislative
and other measures, must assist and protect these institutions
to ensure the independence, impartiality, dignity and effectiveness
of these institutions.
(4) No person or organ of state may interfere
with the functioning of these institutions.
(5) These institutions are accountable to
the National Assembly, and must report on their activities and
the performance of their functions to the Assembly at least once
Despite these constitutional stipulations, there
is some concern as to the financial independence of the SAHRC,
the funding of which is channelled through the Ministry of Justice47.
The following state institutions strengthen
constitutional democracy in the Republic:
a. The Public Protector
b. The South African Human Rights Commission
c. The Commission for the Promotion and Protection
of the Rights of Cultural, Religious and Linguistic Communities
d. The Commission for Gender Equality
e. The Auditor-General
f. The Electoral Commission
46 Section 181(1) of the SA Constitution lists these
bodies as follows: Back
Spencer and Bynoe A Human Rights Commission (IPPR London
1998) 53. Back