Keynote address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP, at the 5th Annual General Meeting of the Supervisory Board of the Foundation for Human Rights, Sunnyside Park Hotel, Pretoria
Programme Director,
Chairperson of the Supervisory Board to the FHR, Ms Louise Asmal,
Deputy Chairperson, Judge Siraj Desai,
Members of the Board, Judge James Yekiso, Adv Dumisa Ntsebeza, Ms Thoko Mpumlwana, Judge Jody Kollapen, Ms Zibusiso Kganyago, Prof Errol Holland and Ms Shirley Mabusela,
Member of the Board and Executive Director, Ms Yasmin Sooka,
Deputy Director, Mr Hanif Vally,
Various project managers of the FHR,
Representatives of civil society,
Distinguished guests,
Ladies and gentlemen, colleagues and friends.
Political and social activist, Abbie Hoffmann, once remarked that - "Democracy is not something you believe in or a place to hang your hat, but it's something you do. You participate. If you stop doing it, democracy crumbles."
A similar view was expressed in August 2012 by Trevor Manuel, then Minister in the Presidency for the National Planning Commission, when he said – “We need active citizenship in South Africa. If you don’t care about democracy, why should the government care? All citizens should be engaged with society.”
Underpinning both statements is the notion that democracy means “doing”, it means participating, it means being active.
The National Development Plan sees active citizenship as equalising opportunities and enhancing human capabilities. An integral part of active citizenship is public participation. Public participation is based on the belief that those who are affected by a decision have a right to be involved in the decision-making process.
It has been said that public participation is a process, not an event. It is not about paying lip-service or going through the motions of apparent consultation, it requires a bona fide desire to find a solution and it requires giving feedback. Public participation is all about active engagement before, during and after the decision-making process.
This is where civil society plays a pivotal role. Civil society can encourage public participation, contribute to active citizenship, hold government to account and, in so doing, entrench constitutional democracy. But in order to do this, civil society must be empowered.
One cannot over-emphasise the importance of the role of civil society and government’s commitment to supporting an independent civil society that assists it in implementing its goals. Civil society must not been seen by government as an opponent or an advisory.
Importantly, civil society play a vital role in ensuring that government observes the constitutional imperative of realising socio-economic rights as well as the civil and political rights which underpin those very socio-economic rights.
Our National Development Plan states that - “Transformation does not depend on highly technical processes, but rather on the participation of citizens… South Africa will enjoy the full benefits of democracy when there is full and dynamic oversight and participation by communities.”
One of the ways of making this happen is the Access to Justice and Promotion of Constitutional Rights Programme of the Foundation for Human Rights. This Programme set out to contribute to the strengthening of democracy by improving access to justice and promoting constitutional rights. The aim of this programme was to build greater awareness and knowledge of constitutional rights.
It is only when people are made aware that they are able to claim their rights that they can actively influence decisions made about their personal and family wellbeing, their communities and their country.
Government and the FHR have a long and fruitful history. The Government of the Republic of South Africa together with the European Union established the Foundation for Human Rights in 1996 as an independent grant-making agency for the promotion of human rights.
The new democratic government agreed with the European Union to establish an independent foundation to channel funds to civil society. In 1996 President Nelson Mandela signed an agreement establishing the FHR, to be known then as the European Union Foundation for Human Rights.
The Department of Justice and Constitutional Development was the line ministry overseeing the programme with the FHR as the implementing agency for grant-making and the promotion of human rights in the country. In 2001, the Department, with the European Union agreed that the European Union Foundation would become an independent entity, to be known as the Foundation for Human Rights.
Our department is extremely proud of its partnership with the FHR and what this partnership has achieved. The achievements of the Access to Justice and Promotion of Constitutional Rights Programme are well-known: The three key result areas of the programme were improved access to justice, including restorative justice mechanisms, improved awareness and knowledge of constitutional rights in South Africa, and enhanced participatory democracy through public policy dialogue and strengthening of civil society organisations.
Under these goals, particular attention was given to vulnerable and marginalised groups, particularly those in townships and rural areas and to the building of partnerships with civil society organisations.
Whether it be the nine-million persons reached through popular education programmes, or the 360 000 farm workers and farm dwellers who now have increased access to justice, or the 5 400 members of civil society organisations who have benefited from capacity building programmes, all of them now have a greater understanding of what a living Constitution is.
Whether it’s the people in the 100 Community-based Advice Offices who ensured that more than 100 000 migrants were provided with legal support services, or the more than 1 300 civil society organisations who were involved in the programme, every single person has been empowered and has benefited from the programme.
In May 2012, following on the achievements of the Access to Justice and Promotion of Constitutional Rights programme and recognising the need to build on the positive achievements of the programme, the local Delegation of the European Union, proposed to the Department of Justice and Constitutional Development and National Treasury, that a new programme dealing with the promotion, protection and fulfilment of constitutional rights issues be funded under Sector Budget Support.
The Socio Economic Justice for All (SEJA) Programme is based on the values and principles of dignity, universality, indivisibility, interrelatedness and interdependence of all rights. The SEJA programme is aligned to the policy priorities of the NDP by focusing on enhancing government capacity to deliver on its core obligations in respect of its socio-economic rights mandate and the development of an active citizenry.
SEJA will focus on improved awareness of constitutional rights with more emphasis on socio- economic rights and on vulnerable and marginalised groups and on enhanced participatory democracy through public policy dialogues on constitutional rights. In addition, it will focus on improved and sustained collaboration between government, Chapter 9 Institutions, civil society and other stakeholders in terms of justice service delivery and socio economic rights. Strengthening the capacity, engagement and participation of civil society organisations in the realisation of constitutional rights will be of the utmost importance. The programme will be implemented over a period of 60 months followed by 24 months wrap-up.
Ladies and gentlemen,
Being South African means we are all in it, together. Discussing the consultation process which led to the NDP, Minister Trevor Manuel said that there was an overwhelming sense from all, including organisations representing millions of people, to be part of the process of making South Africa a better place and to take action to put collective interest ahead of narrow sectoral concerns.
Active citizenry means bringing about changes in how society functions. It means active citizenry in every aspect of society – be this in respect of schools, fighting crime, overseeing healthcare, requiring reports from and giving mandates to the three spheres of government - in all of this we need to work to ensure that citizens are actively engaged.
Active citizenry entails working individually and collectively with others in the community, citizens have a critical role to play in their own development and in the development of our country. The idea that people sit back and wait for government to deliver is neither feasible nor consistent with ‘people-centred’ development. As Trevor Manuel asked: What is active citizenry? How would active citizenry be nurtured? Who would be these active citizens? What would they do, and where would their voice emanate from?
At the heart of these questions lies the issue of empowerment of civil society, of strengthening capacity within these organisations so as to empower them to assist communities to exercise their constitutional rights.
From the side of government, we have put in place statutory mechanisms to deal with public participation and encourage active citizenship: schools governing bodies; community policing forums; and wards and municipal IDP processes.
Regrettably, the extent to which these measures have worked is another question. It seems to be part of the human condition that people tend to want to get on with their own lives until something goes wrong or an issue comes along which kick-starts them into action.
This is all the more reason why we need to strengthen the civil society sector through public participation and why the work being done by the FHR is so fundamentally important. There are two sides to the constitutional coin. Active citizenry means recognising both the right and the corresponding responsibilities.
In this regard I want to refer to the recent events in the National Assembly and in particular those of the past Thursday. The problem I want to highlight is that of Members of the National Assembly in Parliament who insist on their rights, but show a complete disregard for the responsibilities that accompany those rights.
Respect - for Parliament, for the rule of law and the Rules of Parliament and for the Constitution – is not a jersey. One can’t put it on or take it off depending on how one feels on a particular day or only when it suits one’s needs. One party, in particular, insist on the enforcement of their rights to be respected in Parliament and to be heard when it suits them, but when it doesn’t, refer to the Rules as archaic and as the Citizen’s headline recently stated, vowed “not to obey Parliament rules.”
On the one hand, they express contempt for the Constitution and in particular the Bill of Rights and the courts, but then threaten to go to court at every turn when they feel their rights are violated.
Section 13 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 4 of 2004, states that a member will be guilty of contempt of Parliament if the member, amongst others, wilfully fails or refuses to obey any rule, order or resolution of a House or commits an act which in terms of the Rules constitutes contempt of Parliament.
The formal creation of Parliamentary Rules begins with the Constitution, which empowers Parliament to make the rules for its internal arrangements to be conducted. Convention and precedent also play a role, for example, over the years the convention has developed that it is unacceptable to say a member is lying.
The functioning of Parliament depends on the acceptance of rulings of the Presiding Officer whether one agrees with them or not. There is provision for complaints about the rulings to be taken to the Rules Committee and ultimately those rulings are subject to judicial review as was done some time ago with the De Lille case.
And then there is the issue of the police presence in the House on Thursday. Having the police in the Chamber sounds horrific and limiting of freedom of speech, but the problem Parliament is facing is how the Presiding Officer maintains order in the face of complete defiance.
On this issue the law is clear: the Powers and Privileges Act makes provision for the police to remove from the precinct –on the order of the Speaker –any person who creates or takes part in any disturbance in the precinct while Parliament is sitting.
If the Speaker or Presiding Officer orders a Member to leave the House or to be removed and the Member simply ignores the order, then it leaves very little choice in the matter. The accepted process is one where if a Member refuses to abide by the ruling of the Speaker they are asked to leave the House.
What we have seen in the past weeks is Members blatantly refusing to leave the House when ordered to do so, even to the extent of preventing the House from sitting, as in the case of the President’s Question time a few weeks ago. The Sergeant- at-Arms is meant to enforce the order, but practically this is not possible where a person refuses to leave. Before Thursday we had members refusing to leave and nothing could be done.
All this is severely damaging the image of Parliament. The overwhelming majority of comments on social media called for order and dignity to be restored. One person asked “is this the calibre of MPs you voted for?” and said “Parliament has become a national disgrace.” Another said: “There is nothing honourable about these parliamentary proceedings.” And another said: “People must get involved in our politics. Being an armchair critic isn’t good enough; nothing will change without us being involved.”
Ladies and gentlemen,
One can only but hope that these members come to their senses. Once people lose respect for Parliament, it’s a matter of time before they lose respect for the courts, the rule of law and the Constitution in general. We have fought too hard for our freedom and to build these institutions, we cannot allow that it be made a mockery of.
Distinguished guests,
Raising awareness of constitutional rights is not something that government can do alone. We need skilled and dedicated partners. Very often government together with civil society organisations in South Africa have greater success in promoting human rights awareness than government alone is able to achieve.
Let me conclude with the words of someone who was very highly respected, and very close to this Foundation, the late Prof Kader Asmal. Once, I seem to recall it was during his last term in Parliament, in a caucus meeting, Prof Asmal launched into what was - one would expect no less from him - a very spirited debate on some or other issue.
I cannot recall what the exact nature of the issue was, but I clearly recall Prof Asmal making the point that any lack of service delivery or any violation of human rights in a democracy cannot simply be ignored or wished away. Ignorance meant condoning. And his words were: “Not to speak, is to speak. Not to act, is to act.”
Perhaps this best defines the role we all envisage for civil society. That civil society be empowered to speak, even when it seems, at times, that no one is listening and that civil society organisations act, even when it seems as if no one is noticing. Civil society must hold government to account.
We have recently seen numerous violent protests in our country. One cannot help but wonder whether these protests could have been avoided, or the impact minimized, if civil society organisations on the ground, in our communities, were organised and mobilised and if local government had gone into proper consultation and negotiation with such organisations. Public participation and dialogue is, after all, a two-way street.
When we recently visited Malmesbury I was most impressed by the work being undertaken by the Foundation and the facilitators in presenting a training course as part of the Boland Area Human Rights Awareness Project. I want to commend the Foundation for this. I wish the FHR, its Board and its staff all the very best. The work undertaken by the FHR brings us ever-closer to the National Development Plan’s vision for South Africa in 2030, a vision of a better life for all, anchored in our Constitution.
I thank you!
