The Role of National Human Rights Institutions in Defending Human Rights Defenders

Commissioner Lindiwe MokateSouth African Human Rights Commission18 September, 2014The Role of National Human Rights Institutions in Defending Human Rights Defenders1

Margaret Sekaggya, the UN Special Rapporteur on Human Rights Defenders noted, in her report to the UN Human Rights Council, that NHRIs which are compliant with the Paris Principles can serve a dual function, as protectors of human rights defenders and as human rights defenders themselves. In its role as an A status NHRI, the South African Human Rights Commission, therefore, strives to carry out both of these functions.

1National Human Rights InstitutionsProtectors of Human Rights Defenders;Human Rights Defenders themselves.

(per: Margaret Sekaggya, former UN Special Rapporteur on Human Rights Defenders)

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Margaret Sekaggya, the UN Special Rapporteur on Human Rights Defenders noted, in her report to the UN Human Rights Council, that NHRIs which are compliant with the Paris Principles can serve a dual function, as protectors of human rights defenders and as human rights defenders themselves. In its role as an A status NHRI, the South African Human Rights Commission, therefore, strives to carry out both of these functions.

2Structure of Presentation31. Role of NHRIs in dual role of: a) protection of human rights violations in business practices; b) protection of human rights defenders in BHR work;Factors that enable/constrain NHRIs to perform role;Strategies and opportunities for enhanced NHRI execution of protective role; 4. Best practices and Case Studies from SAHRC.

NHRI as defenders of human rights4Promotion and protection of human rights core function of NHRIs, established by law/constitution.

Policy and legislative advisory function;Redress advisory function;Awareness-creation function;Investigative function;Research function.

Policy and legislative advisory function;Relates to:Advising government on policy reformAdvising the legislature on legislationPointing out the gaps in policy and legislationRecommending policy/legislative provisions that relate to institutional strengthening/enforcementRedress advisory function;Relates to the advice provided to members of the public in respect of remedies available and the assistance provided in terms of them accessing these remediesAwareness-creation function;Refers to outreachEnsuring dissemination of human rights informationInvestigative function;Refers to investigating violations of human rightsRefers also to making of findings and recommendationsResearch functionRefers to seeking to generate evidence-based data on human rights issues in the countrySupplements other functions ie: investigative etc

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NHRI as protectors of human rights defenders5Categories of Human Rights Defenders:NGOs;CBOs;Trade Unions;Media;Public-spirited individuals.

NHRIs as protectors of human rights defenders6Types of Risks confronting Human Rights Defenders:Physical assault and extrajudicial killing of human rights defenders;Intimidation of union representatives and legal representatives of victims;Harassment media personnel and public-spirited whistleblowers;Lack of legal representation for human rights defenders.

For example:If strikers are injured or killed by the police during a protestIf union representatives or legal representatives are obstructed from carrying out their work through threatsIf the media are threatened for purporting to write about or expose a certain event or series of eventsInstances where human rights defenders are denied access to legal representation, either actively or due to lack of means through which to secure it.

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NHRIs as protectors of human rights defenders contd.7Mechanisms for protectionComplaints lodged with NHRIS by Human Rights Defenders;Joint Investigations;Joint Hearings;Joint Strategic Litigation;Amicus Curiae;Joint Awareness Campaigns;Parliamentary Submissions;Submissions to the Office of the President;Reports to UN bodies;Authoritative Public Statements/Opinions.

An enabling environment for the protection of human rights defendersA legal framework conducive to the advancement of the work of NHRIs-For instance:The Labour Relations ActBasic Conditions of Employment Act Employment Equity Act Occupational Health and Safety Act Compensation for Occupational Injuries and Diseases ActThe Protected Disclosures ActIndependenceOperational autonomy-freedom from government or other interference in the carrying out of the institutions mandateFinancial independence and appropriate resourcing-While funding may be dependent on government, it is not dependent on the decisions made or the persons appointed

8The Labour Relations Act-sets out the relationship between employees and employers, particularly in respect of:BargainingDisputesCommencement and Termination of EmploymentUnionisation

Basic Conditions of Employment Act-Deals with the rights of employees within their daily work environment, such as working hours, working conditions and leaveFor instance, in respect of child labour it states that it is an offence to employ a child under the age of 15 years to work.The Act states further that no person may employ a child to do work that is inappropriate for their age or that compromises factors such as their well-being, physical and mental health and others.

Employment Equity Act-Sets out requirements for companies employing over 50 people in respect of representivity on the basis of race, gender and disability

Occupational Health and Safety Act-Contains provisions on the minimum standards for a healthy work environment and the responsibilities of employers to protect their employees against workplace hazards (with the exception of mining-this is dealt with in the Mine Health and Safety Act)

Compensation for Occupational Injuries and Diseases Act-Sets out the legal framework for claims in respect of occupational injuries

The Protected Disclosures Act ensures that, where an employee discloses any form of misconduct, they will remain anonymous and will be afforded protection from victimisation.8

Factors that enable NHRIs to be effective protectors of human rights & HR defenders 9Enabling Factors1) Integrity in Commission composition & appointment process;2) Financial and Operational Independence;3) Comprehensive Legislative Powers (Incl. enforcement powers);4) Existence of other effective institutions supporting embedding of human rights culture: Independent Judiciary;Effective Parliament;Pluralistic Media;Active and empowered Civil Society.

Integrity in Commission composition: Criteria for membership of a national institution

the criteria for membership must be clearly established; by law and in advance of appointment; objectively verifiable criteria against which the actual appointment can be assessed; representative of societys diversity;Members must have professional skills and knowledge of human rightsThe Commission must reflect societys diversity the members should not only belong to societys elite, it must be reflective in terms of race, ethnicity, religion, language;Selection of members should be on the basis of merit; Economically and politically disadvantaged groups must be adequately represented.

Appointment procedures: appointment mechanisms are one of the most important ways to guarantee the independence, diversity, accessibility. Nomination by civil society organizations which will ensure that diversity and an organic relationship with civil society are reflected in the membershipAppointment by Parliament Appointment by another autonomous institution

Financial and Operational Independence The institution must have a budget not subject to control by the executive;Its members must have fixed terms of office; The institution must operate from its own buildings and should ideally, not be part of any government department; The institution must have the ability to carry out investigations and make findings and recommendations without fear or favor.Answerable to Parliament and not the government of the dayMembers appointed should not have conflicting interestsThey must have authority to hire staff and have the adequate resources necessary to hire and retain the staff.

Enforcement Powers NHRIs are made more effective when they have such powers as are necessary to enforce their findings and access information such as the right to subpoena witnesses whether private, or state actors; to carry out search and seizure operations.

Existence of other effective institutions supporting democracyIndependent judiciary Pluralistic media that operates with freedom of expression and is not state-owned.An effective parliamentAn active and empowered civil society that is able to access funding, information, registration mechanisms, able to communicate its message to an independent media.

9BHR Best practices - SAHRC10Thematic Focus Area 2014/5 Business and Human Rights;Development of Business and Human Rights Country Guide for South Africa (DIHR);Development of Disability Toolkit for Business in South Africa ;Country-wide Advocacy Roundtable Discussions on Business and Human Rights;Multi-Stakeholder National Conference on Business and Human Rights;Ongoing Investigations of Business and Human Rights.

The Disability toolkit is an initiative in partnership with Ernst and Young and has the following aims:To create a best practise manual on:Employment of people with disabilitiesAccommodation of people with disabilities in the workplaceIncreasing the employability of people with disabilitiesThe project has not come to fruition as yet10BHR Case Studies - SAHRC11Marikana Platinum Mine (Lonmin - owned) - Watching Brief at National Commission of Enquiry; representation of public interest; research into underlying causes of human rights violations in Marikana;POSIB - Submission to President and Parliament on the adverse impact of human rights on media practitioners and public-spirited whistle-blowers;Delivery of Learning Material Public Hearing Partnering with NGO in strategic impact hearing ensuring corporate compliance with human rights of children.

12Thank You