Human Rights: Interim Constitution Accord

National Peace Accord Article 1.1 Rights of individuals in South Africa, Principles:

1.1 The establishment of a multi-party democracy in South Africa is our common goal.

Democracy is impossible in a climate of violence, intimidation and fear. In order to ensure democratic political activity all political participants must recognise and uphold certain fundamental rights described below and the corresponding responsibilities underlying those rights.

1.2 These fundamental rights include the right of every individual to:

- freedom of conscience and belief;
- freedom of speech and expression;
- freedom of association with others;
- peaceful assembly;
- freedom of movement;
- participate freely in peaceful political activity.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 8 Equality:

(1) Every person shall have the right to equality before the law and to equal protection of the law.

(2) No person shall be unfairly discriminated against, directly or indirectly, and, without derogating from the generality of this provision, on one or more of the following grounds in particular: race, gender, sex, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture or language.

(3)(a) This section shall not preclude measures designed to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by unfair discrimination, in order to enable their full and equal enjoyment of all rights and freedoms.

(b) Every person or community dispossessed of rights in land before the commencement of this Constitution under any law which would have been inconsistent with Subsection (2) had that subsection been in operation at the time of the dispossession, shall be entitled to claim restitution of such rights subject to and in accordance with Sections 121, 122 and 123.

(4) Prima facie proof of discrimination on any of the grounds specified in Subsection (2) shall be presumed to be sufficient proof of unfair discrimination as contemplated in that subsection, until the contrary is established.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 9 Life:

Every person shall have the right to life

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 10 Human dignity:

Every person shall have the right to respect for and protection of his or her dignity.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 11 Freedom and security of the person:

(1) Every person shall have the right to freedom and security of the person, which shall include the right not to be detained without trial.

(2) No person shall be subject to torture of any kind, whether physical, mental or emotional, nor shall any person be subject to cruel, inhuman or degrading treatment or punishment.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 12 Servitude and forced labor:

No person shall be subject to servitude or forced labor.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 13 Privacy:

Every person shall have the right to his or her personal privacy, which shall include the right not to be subject to searches of his or her person, home or property, the seizure of private possessions or the violation of private communications.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 14 Religion, belief, and opinion:

(1) Every person shall have the right to freedom of conscience, religion, thought, belief, and opinion, which shall include academic freedom in institutions of higher learning.

(2) Without derogating from the generality of Subsection (1), religious observances may be conducted at state or state-aided institutions under rules established by an appropriate authority for that purpose, provided that such religious observances are conducted on an equitable basis and attendance at them is free and voluntary.

(3) Nothing in this Chapter shall preclude legislation recognizing:

(a) a system of personal and family law adhered to by persons professing a particular religion; and

(b) the validity of marriages concluded under a system of religious law subject to specified procedures.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 15 Freedom of Expression:

(1) Every person shall have the right to freedom of speech and expression, which shall include freedom of the press and other media, and the freedom of artistic creativity and scientific research.

(2) All media financed by or under the control of the state shall be regulated in a manner which ensures impartiality and the expression of a diversity of opinion.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 16 Assembly, demonstration and petition:

Every person shall have the right to assemble and demonstrate with others peacefully and unarmed, and to present petitions.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 17 Freedom of association:

Every person shall have the right to freedom of association.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 18 Freedom of movement:

Every person shall have the right to freedom of movement anywhere within the national territory.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 19 Residence:

Every person shall have the right freely to choose his or her place of residence anywhere in the national territory.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 20 Citizens' rights:

Every citizen shall have the right to enter, remain in and leave the Republic, and no citizen shall without justification be deprived of his or her citizenship.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 21 Political rights:

(1) Every citizen shall have the right:
(a) to form, to participate in the activities of and to recruit members for a political party;
(b) to campaign for a political party or cause; and
(c) freely to make political choices.

(2) Every citizen shall have the right to vote, to do so in secret and to stand for election to public office.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 22 Access to court:

Every person shall have the right to have justiciable disputes settled by a court of law or, where appropriate, another independent and impartial forum.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 23 Access to information:

Every person shall have the right of access to all information held by the state or any of its organs at any level of government in so far as such information is required for the exercise or protection of any of his or her rights.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 24 Administrative justice:

Every person shall have the right to

(a) lawful administrative action where any of his or her rights or interests is affected or threatened;

(b) procedurally fair administrative action where any of his or her rights or legitimate expectations is affected or threatened;

(c) be furnished with reasons in writing for administrative action which affects any of his or her rights or interests unless the reasons for such action have been made public; and

(d) administrative action which is justifiable in relation to the reasons given for it where any of his or her rights is affected or threatened.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 25 Detained, arrested and accused persons:

(1) Every person who is detained, including every sentenced prisoner, shall have the right:

(a) to be informed promptly in a language which he or she understands of the reason for his or her detention;

(b) to be detained under conditions consonant with human dignity, which shall include at least the provision of adequate nutrition, reading material and medical treatment at state expense;

(c) to consult with a legal practitioner of his or her choice, to be informed of this right promptly and, where substantial injustice would otherwise result, to be provided with the services of a legal practitioner by the state;

(d) to be given the opportunity to communicate with, and to be visited by, his or her spouse or partner, next-of-kin, religious counsellor and a medical practitioner of his or her choice; and

(e) to challenge the lawfulness of his or her detention in person before a court of law and to be released if such detention is unlawful.

(2) Every person arrested for the alleged commission of an offence shall, in addition to the rights which he or she has as a detained person, have the right:

(a) promptly to be informed, in a language which he or she understands, that he or she has the right to remain silent and to be warned of the consequences of making any statement;

(b) as soon as it is reasonably possible, but not later than 48 hours after the arrest or, if the said period of 48 hours expires outside ordinary court hours or on a day which is not a court day, the first court day after such expiry, to be brought before an ordinary court of law and to be charged or to be informed of the reason for his or her further detention, failing which he or she shall be entitled to be released;

(c) not to be compelled to make a confession or admission which could be used in evidence against him or her; and

(d) to be released from detention with or without bail, unless the interests of justice require otherwise.

(3) Every accused person shall have the right to a fair trial, which shall include the right:

(a) to a public trial before an ordinary court of law within a reasonable time after having been charged;

(b) to be informed with sufficient particularity of the charge;

(c) to be presumed innocent and to remain silent during plea proceedings or trial and not to testify during trial;

(d) to adduce and challenge evidence, and not to be a compellable witness against himself or herself;

(e) to be represented by a legal practitioner of his or her choice or, where substantial injustice would otherwise result, to be provided with legal representation at state expense, and to be informed of these rights;

(f) not to be convicted of an offence in respect of any act or omission which was not an offence at the time it was committed, and not to be sentenced to a more severe punishment than that which was applicable when the offence was committed;

(g) not to be tried again for any offence of which he or she has previously been convicted or acquitted;

(h) to have recourse by way of appeal or review to a higher court than the court of first instance;

(i) to be tried in a language which he or she understands or, failing this, to have the proceedings interpreted to him or her; and

(j) to be sentenced within a reasonable time after conviction.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 26 Economic activity:

(1) Every person shall have the right freely to engage in economic activity and to pursue a livelihood anywhere in the national territory.

(2) Subsection (1) shall not preclude measures designed to promote the protection or the improvement of the quality of life, economic growth, human development, social justice, basic conditions of employment, fair labor practices or equal opportunity for all, provided such measures are justifiable in an open and democratic society based on freedom and equality.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 27 Labor relations:

(1) Every person shall have the right to fair labor practices.

(2) Workers shall have the right to form and join trade unions, and employers shall have the right to form and join employers' organizations.

(3) Workers and employers shall have the right to organize and bargain collectively.

(4) Workers shall have the right to strike for the purpose of collective bargaining.

(5) Employers' recourse to the lock-out for the purpose of collective bargaining shall not be impaired, subject to Section 33 (1).

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 28 Property:

(1) Every person shall have the right to acquire and hold rights in property and, to the extent that the nature of the rights permits, to dispose of such rights.

(2) No deprivation of any rights in property shall be permitted otherwise than in accordance with a law.

(3) Where any rights in property are expropriated pursuant to a law referred to in Subsection (2), such expropriation shall be permissible for public purposes only and shall be subject to the payment of agreed compensation or, failing agreement, to the payment of such compensation and within such period as may be determined by a court of law as just and equitable, taking into account all relevant factors, including, in the case of the determination of compensation, the use to which the property is being put, the history of its acquisition, its market value, the value of the investments in it by those affected and the interests of those affected.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 29 Environment:

Every person shall have the right to an environment which is not detrimental to his or her health or well-being.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 30 Children:

(1) Every child shall have the right:

(a) to a name and nationality as from birth;

(b) to parental care;

(c) to security, basic nutrition and basic health and social services;

(d) not to be subject to neglect or abuse; and

(e) not to be subject to exploitative labor practices nor to be required or permitted to perform work which is hazardous or harmful to his or her education, health or well-being.

(2) Every child who is in detention shall, in addition to the rights which he or she has in terms of Section 25, have the right to be detained under conditions and to be treated in a manner that takes account of his or her age.

(3) For the purpose of this section a child shall mean a person under the age of 18 years and in all matters concerning such child his or her best interest shall be paramount.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 31 Language and culture:

Every person shall have the right to use the language and to participate in the cultural life of his or her choice.

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 3, Section 32 Education:

Every person shall have the right:

(a) to basic education and to equal access to educational institutions;

(b) to instruction in the language of his or her choice where this is reasonably practicable; and

(c) to establish, where practicable, educational institutions based on a common culture, language or religion, provided that there shall be no discrimination on the ground of race.

Implementation History

1993

Human rights situation deteriorated in South Africa with the increase in violent activities. “In its October 1992 figures for the year to date, the independent Human Rights Commission (hrc) reported that 1,147 people had been killed in political violence in Natal, including 32 killed by the security forces. Attacks on prominent grassroots organizers continued and in many cases blocked local efforts to establish peace.” One important effort on the side of government to end violence was the establishment of the Goldstone Commission, which was formed in 1991. The commission had mandate to investigate public violence. “In 1992, it publicly recommended steps the government should take to end the violence.” The commission established its reputation as an independent and unbiased body and made numerous recommendations to the government, some of which were not implemented. Following reports of deaths in detention, “the government allowed the International Committee of the Red Cross to examine prisons in South Africa for the first time.”1

According to the Human Rights Watch report, “During 1993, some steps were taken to increase accountability in the law enforcement system, but abuses of human rights continued to be committed by the security forces, including detention without trial and torture and ill-treatment of detainees. South Africa signed several human rights treaties during 1993, including the Convention Against Torture and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).” The report further states that “the structures of the September 1991 National Peace Accord (NPA), including the Goldstone Commission of Inquiry into the causes of the violence, continued to function during 1993. Measures taken under the NPA, especially the establishment of local dispute resolution committees, were widely credited with the decline in political violence in late 1992 and early 1993.” According to the report, “the South African government continued to allow greater freedom than in the past to organizations monitoring human rights based both inside and outside the country."2

The Constitution of the Republic of South Africa Act 200 of 1993 made a provision for the establishment of the South African Human Rights Commission. The interim constitution granted fundamental rights. The constitution also had a provision for the establishment of constitutional court.

1994

In October 1994, the Constitutional Court announced that its first case would be to decide the constitutionality of the death penalty. Although violence was the major problem, all official restrictions on monitoring human rights abuses were lifted with the installation of the new government.3 The Human Rights Commission Act 54 of 1994 was passed on 7 December 1994 paving the way for the establishment of Human Rights Commission in South Africa.

1995

The Constitutional Court made a decision to abolish the death penalty on June 7, 1995.4 The Human Rights Commission was inaugurated on October 2, 1995 under the Human Rights Commission Act 54 of 1994 and as provided for by the Constitution of the Republic of South Africa Act 200 of 1993.5 The provision of human rights in the interim constitution was fully implemented with the establishment of the Human Rights Commission and the functioning interim constitution.

1996

The Human Rights provisions were implemented. Six institutions for the Protection of Human Rights mentioned in sections 116-119 of the interim Constitution were created and incorporated into the Final Constitution. These were: The Public Protector, the Human Rights Commission for the Promotion and Protection of the Rights of Cultural, Religious, and Linguistic Communities (replaced the Volkstaat Council), the Commission for Gender Equality, the Auditor General and the Electoral Commission. It was established that no rule could limit the individual rights guaranteed by the Bill of Rights. However, the creation of a Human Rights culture faced challenges in so far as crime rates were the fourth largest in the world, the police continued to abuse power, and prisoners were victims of inhuman treatment (breaching the rights of the Arrested, Detained and Accused Persons). Socio-economic rights were hindered by the structural inequalities present in South Africa.

1997

No further developments observed.

1998

No further developments observed.

1999

No further developments observed.

2000

No further developments observed.

2001

No further developments observed.

2002

No further developments observed.