Watchdogs need citizens to watch over them - Publications

Seminar on Human Rights Institutions in South Africa. Photo by David Harrison

IF WE want institutions that watch over our rights, we ought to do more to watch over them. The appointment of a new Human Rights Commission (HRC) a few weeks ago should have been controversial. The new chair, former public protector Lawrence Mushwana, has been criticised by some for a perceived unwillingness to tackle political power-holders: he recently had his report on the Oilgate scandal overturned by a judge. Half the commissioners are former African National Congress (ANC) MPs, while respected figures with no ties to the ANC were ignored.

A report by University of Cape Town researchers on the appointments process said that MPs did not seem to take interviews with applicants seriously and behaved as if they had made up their mind before the process began. In sum, critics insist that political loyalties rather than commitment to rights shaped many of the appointments.

This is not the only human rights institution established by the constitution to have invited controversy — the Commission on Gender Equality (CGE) has been riven by internal wrangling.

But none of this has attracted much public fuss: reportage and debate was sparse. Why the lack of interest? Possibly because the institutions’ impact is seen to be slight. They have not, many would argue, done much to protect our rights and their work is thus of little public concern.

This is part of the truth — but not all of it. The human rights institutions lack the power to enforce decisions. And it would be hard to make the argument that they have played a major role in protecting our rights. But they nevertheless are more important than this judgment on their performance might suggest and it is in all our interests to pay more attention to them than we do.

First, while the CGE clearly has under- performed, the HRC has, given its limited powers, done more than the negative view suggests: at the very least it has drawn attention to rights issues that might have otherwise have been ignored.

Second, while human rights are sometimes branded as middle-class luxuries, rights are crucial to all of us, particularly the poor and weak, because it is rights that can offer us both protection against arbitrary power and the right to speak and to act — if rights enjoyed in theory become rights exercised in practice, something the human rights institutions can play a role in ensuring. The right of us all to speak, act and choose are central to democracy and this gives institutions meant to support them a crucial role.

Third, and most important, at a recent seminar on human rights institutions organised by the Centre for the Study of Democracy with the Institute for Democracy in Africa and the Heinrich Böll Foundation, in which Mushwana and other HRC representatives participated, commissioners and their critics agreed that the effect of the institutions depends largely on the degree of public support for their work.

Precisely because they have no formal powers beyond those to gather information, to promote awareness of rights and to make suggestions to the government and other actors, the institutions will have an effect only if they can build enough public support to make ignoring them politically costly. Newly appointed commissioners, including Mushwana, accepted that they would need to win public trust if they were to offer effective protection for people’s rights.

One way in which the HRC and CGE can do this is to demonstrate clearly their independence from power holders, public and private: only if they signal that they are on the side of the citizenry rather than those who would wield power over them are they likely to ensure that power-holders face public opposition if they ignore them.

Another way is to raise their profile among citizens — to become far better at informing people what they do and why they do it. A participant pointed out that human rights were often defended in abstract language that made sense only to qualified lawyers — a key challenge for the commissions is to show that rights address the concrete problems people face in their lives. The key test for the new HRC and CGE is, therefore, to show not only that they are independent but that they can make a difference and therefore deserve public support.

But, as other participants suggested, an effective role for human rights institutions does not only depend on the commissions — it also lies with those citizens able to influence the public debate. We are far more likely to ensure that human rights institutions do their job if we insist on taking them seriously, if we monitor their performance or lack of it, and insist on public debate on what they are doing and what they should be doing. Discussion of who should serve on the institutions, and what they should do, should be a mainstream issue, not the preserve of a handful of lawyers and nongovernmental organisations.

The human rights institutions need not be obscure or ineffectual. But they will reach their potential only if we begin to make them accountable to us by taking them more seriously than we do now.

Friedman is director of the Centre for the Study of Democracy, an initiative of Rhodes University and the University of Johannesburg.

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Photographs of the Seminar

 

 

Photos by David Harrison