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Summary: This report extracts mentions of children's rights issues in the reports of the UN Special Procedures. This does not include reports of child specific Special Procedures, such as the Special Rapporteur on the sale of children, child prostitution and child pornography, which are available as separate reports. Reports: ______________________________________________________________________________ Special Rapporteur on Food Poverty: The proportion of people living in poverty declined during the first part of the decade, but this was reversed in 2008 when the poverty rate started deteriorating again against the backdrop of the national and international economic downturn. An estimated 60 per cent of the population now live in income poverty, a very high level compared to other middle income countries. A total of 64 per cent of all children (11.9 million) live in families in income poverty (defined in 2008 as an income of less than R570), with significant disparities among regions, ranging from 36.7 per cent in Western Cape to 83.3 per cent in Limpopo. Moreover, the poorest families have the largest number of children: an estimated 7 million children live in the poorest 20 per cent of households, compared to 1.7 million in the richest 20 per cent.3 (Paragraph 5) Food Insecurity: Certain segments of the population remain highly vulnerable to food insecurity. In 2008, an estimated 20 per cent of South African households had inadequate or severely inadequate food access. A total of 32 per cent of children are hungry or are at risk of hunger in South Africa, although there are significant disparities among regions, ranging from 11.9 per cent in Limpopo and 14.5 per cent in Western Cape to 33.5 per cent in Free State. Women are also significantly more at risk than men, in part because of discrimination within households. Finally, a specific challenge facing the country is the impact of the spread of HIV/AIDS. South Africa, where one in eight children infected with AIDS worldwide lives, has the world’s highest incidence of HIV/AIDS, with a prevalence rate of 10.5 per cent (and 17 per cent for adults aged 15–49 years). This has a significant effect on a person’s ability to access adequate food, since HIV/AIDS negatively affects access to employment and income. In addition, according to the World Health Organization, individuals living with HIV who are asymptomatic need to increase their energy intake by 10 per cent and symptomatic individuals need to increase their intake by 20 to 30 per cent.11 Moreover, malnourished individuals starting antiretroviral therapy are significantly more likely to die in a given period than well-nourished individuals.12 Therefore, HIV/AIDS contributes to food insecurity, and food insecurity in turn makes AIDS/HIV more deadly. (Paragraph 7) A large number of children experience chronic undernutrition in early childhood, seriously impairing their cognitive and physical development. One in five children are stunted as a result of chronic nutritional deprivation, while 1 in 10 children between 1 and 9 years old are underweight,13 with the highest incidences of severe malnutrition in KwaZulu- Natal (13.3 per cent), and the lowest in Limpopo (4.4 per cent). 14 The two most recent national nutrition surveys carried out in South Africa (the 1999 and 2005 National Food Consumption Surveys) do not indicate any significant progress. (Paragraph 8) The province with the lowest level of children living in food insecurity (Limpopo) is also the province with the highest rate of children living in income poverty (83 per cent). While this may be counter-intuitive, it illustrates the role of subsistence farming as a basic safety net: in Limpopo, with a population of about 5.4 million people (10.6 per cent of the total population), according to the 2007 Labour Force Survey, just under a million black Africans, 69 per cent of them women, are estimated to be involved in agriculture mainly for subsistence purposes.16 (Paragraph 9) Methodologies, as well as definitions of hunger and food insecurity, differ among national surveys that monitor food insecurity, such as the General Household Survey (GHS) and the National Food Consumption Survey, and also within surveys over time. For example, the question used in the questionnaire to measure hunger in the GHS was changed considerably in 2009. Also, the GHS (2004 and 2005), the results of which were used in poverty estimations, reportedly substantially over- and underestimated the number of children in various categories. And there were contradictions between the various statistics compiled by the Government, non-governmental organizations and United Nations agencies. The mapping of food insecurity in the country therefore could be improved. (Paragraph 10) Social Assistance: The right to food requires that food be accessible—both physically and economically. Physical accessibility means that food should be accessible to all people, including the physically vulnerable, such as children, older persons or persons with disabilities. Economic accessibility means that food must be affordable without compromising other basic needs, such as education fees, medical care or housing. (Paragraph 36) Social security includes both social insurance (contributory schemes) and social assistance (non-contributory schemes). The Unemployment Insurance Fund and Workmen’s Compensation Fund comprise the contributory schemes and fall within the remit of the Department of Labour. The non-contributory schemes include the child support grant (currently for children up to 6 years of age, after 2012 for all children under 18), the foster- child grant, the care-dependency grant, the older persons grant, the disability grant, grant-in- aid and social relief of distress. An income-based means test is used to determine eligibility for each grant. The budget for the 2010–2011 social assistance programme is US$ 12 billion, with an additional US$ 69 million for the social relief from distress.46 The funds allocated to the social relief of distress increased from US $1.9 million in November 2008 to US$8 million in January 2009 and to US$ 69 million by 2011,47 underscoring the impact of the global economic and financial crises on South African households. (Paragraph 39) In 2010, approximately 15 million people benefited from the cash-transfer programme, representing 30 per cent of the total population. Of the 15 million beneficiaries, 10 million received the child support grant, 3 million people benefited from the older persons grant, 1 million received the disability grant and 500,000 people received the foster-care grant. The reach of the cash-transfer programme highlights the profound poverty affecting South Africa today, although the country has successfully achieved millennium development goal 1 on halving the number of people living in extreme poverty. (Paragraph 40) The social assistance programme is the Government’s main initiative for tackling poverty and inequality-related issues. It is aimed at: (a) immediately reducing poverty among groups that are not expected to fully participate in the labour market and thus are vulnerable to low income (older persons, children, and persons with disabilities); and (b) increasing investment in health, education and nutrition. (Paragraph 41) The Department of Social Development runs the National Food Relief Programme, which covers the provision of food parcels to the most vulnerable people to alleviate poverty. The national budget for this programme was R160 million in 2011. The target beneficiaries are poor households spending less than R300 per month for food; vulnerable children and child-headed households; orphaned children; persons with disabilities; female- headed households with insufficient/no income; and people living with HIV/AIDS and affected households. The food parcels distributed under this programme vary, but include fortified staple foods. Although the National Food Relief Programme is aimed at increasing food security, the scope and number of beneficiaries is unknown. This is in part due to the decentralized nature of the programme, which is administered through the provinces. Moreover, vulnerable groups are already covered by the various cash-transfer grants, and in general people cannot benefit from multiple grants. (Paragraph 42) A first gap is that lower than average levels of take-up rates in poorer and more rural areas have been documented despite eligibility, particularly in the provinces of KwaZulu- Natal and Eastern Cape. While as many as 90 per cent of the people would be eligible for support in some rural areas, the take-up rates are much lower. Additionally, the younger the children in these rural areas, the greater the risk that they will not access the child support grants. A national study commissioned by the Department of Social Development in 2008 found widespread evidence of caregivers, especially in rural areas, not accessing the child support grant for their children until the fourth quarter of their first year. In 2009, at the national level, only 38 per cent of children under the age of one were receiving the child support grant, although about 60 per cent of children in this age group qualified for the grant. This points to the lack of information available to potential beneficiaries. The Department of Social Development is working to address this problem by establishing more SASSA offices throughout the country, deploying mobile trucks to reach more rural areas, and convening public meetings to provide information. (Paragraph 44) Third, the Expanded Public Works Programme could be developed into an entitlements-based scheme. With a budget of US$ 54 million for 2010/2011, the Programme proposes jobs in the areas of, inter alia, infrastructure building, environmental or social services, and community works that allow workers to reach out to the poorest communities and to identify the barriers that they face in having access to social services and in benefiting from social programmes. Five years after its inauguration in 2004, the Programme had led to the initiation of 16,869 projects and created about 600,000 work opportunities at an average daily wage of US$ 8.90, essentially in the rural provinces of Limpopo, KwaZulu-Natal and the Free State. In conformity with the stated objectives of the Programme, the main beneficiaries were women (53 per cent), young people (51 per cent) and people with disabilities (1.7 per cent). (Paragraph 46) Farmers: In part in order to address these concerns, the land tenure security bill was proposed in November 2010. At the time of the mission, a public consultation had been completed on the bill, and this new draft legislation was to be discussed in Parliament. It would replace both the Extension of Security of Tenure Act and the Land Reform (Labour Tenants) Act (No. 3 of 1996). Because the current bill still is subject to amendments, it would be premature to provide a detailed comment. However, the Special Rapporteur observes that the version of the bill issued by the Department of Rural Development and Land Reform on 23 December 2010 does not provide the security of tenure that is its object to strengthen. When asked to grant an order of eviction at the request of the owner, courts are directed to ―have regard to (a) the reason for the proposed eviction; and (b) the fairness of the terms of any agreement between the parties‖ (art. 24, para. 3). This is too vague to provide the requisite security of tenure to the farm dwellers, and because it makes no reference to length of the time during which a particular farm dweller has been residing on the farm, it is inequitable for those who have no other livelihood options outside the farm. The Special Rapporteur is also concerned that the definition of persons ―associated with persons residing or working on farms‖ in article 9 of the bill refers to the children of these persons only until they have reached the age of 18, which implies in theory that once they reach that age, these relatives could be forced to leave the farm, although they may have no other place to reside. (Paragraph 52) ______________________________________________________________________________ Special Rapporteur on Migrants Relevant International Obligations: South Africa is party to a number of core international human rights treaties, in particular the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Rights of the Child and the International Convention on the Elimination of All Forms of Racial Discrimination, as well as the optional protocols to the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of Persons with Disabilities. (Paragraph 6) South Africa has ratified the Convention relating to the Status of Refugees and the protocol thereto, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, and the Migration for Employment Convention (Revised), 1949 (No. 97) and the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) of the International Labour Organization (ILO). (Paragraph 8) National Obligations: Legislation regulating migration issues includes the Refugees Act (1998), the Immigration Act (2002) (last amended in 2004), the Immigration Regulations (2005), the Criminal Procedure Act (Act No. 51 of 1977), the Defence Act (Act No. 42 of 2002) and the Child Care Act (1983) for minors. (Paragraph 11) The Special Rapporteur was impressed by the rights protected and guaranteed to all in the Bill of Rights, which he found to be comprehensive and covering all issues relevant to the protection of migrants, in particular the right to freedom and security of the person (sect. 12), the prohibition of slavery, servitude or forced labour (sect. 13), freedom of employment and fair labour practices (sects. 22-23), the right of all to adequate housing (sect. 26), to health care, food, water and social security services (sect. 27) and education (sect. 29), and the protection of children (sect. 28). The State has the obligation to take reasonable legislative and other measures, within available resources, to achieve the progressive realization of each of these rights. (Paragraph 24) Minors: Section 28(2) of the Constitution provides that the child’s best interests are “of paramount importance in every matter concerning the child”. According to section 29(2) of the Refugees Act, “the detention of a child must be used only as a measure of last resort and for the shortest appropriate period of time.” The Immigration Regulations stipulate that detained minors should be kept separately from adults and in accommodation appropriate to their age and that unaccompanied minors should not be detained (article 1(d) of annex B to regulation 28(5)). The Child Care Act requires that children be brought before a children’s court to determine if they are in need of care. (Paragraph 18) Remittances: As the Special Rapporteur was able to see first-hand, many Zimbabweans move frequently between the two countries, often to buy and resell food and goods to support their families remaining in Zimbabwe. Large segments of the Zimbabwean population and economy have been supported for years through remittances from South Africa. Such transfers have been beneficial in supporting the most vulnerable women, children and elderly persons left behind in Zimbabwe. (Paragraph 33) Unaccompanied Minors: The Special Rapporteur was informed about the situation of unaccompanied migrant children. Statistical sources suggest that, in Musina, there are 600 unaccompanied children, and that, in Johannesburg, as at September 2009, at least 150 unaccompanied minors were staying at the Central Methodist church. Many of these minors were boys, and the majority came from neighbouring countries such as Malawi, Mozambique, Swaziland and Zimbabwe. (Paragraph 66) The Special Rapporteur was informed that children migrate to South Africa for various reasons, including the death of parents or a dying parent to care for. The desire to flee from war or lack of access to basic services, or to seek better opportunities for work or education were also common reasons. (Paragraph 67) The Special Rapporteur calls upon the Government of South Africa to investigate into and to provide information on the situation of unaccompanied minors in the country. In his call, he underlines the vital importance of implement existing frameworks and policies regarding minors, as children left to them selves are extremely vulnerable and at a much higher risk of communicable diseases, psychosocial trauma, abuse and exploitation, including exploitative forms of labour and commercial sex work. (Paragraph 68) According to the South African Children’s Act (38/2005), unaccompanied minors may very well be “children in need of care and protection”; as such, they are eligible to the same level of protection as South African children. The Special Rapporteur was pleased to note that foreign children were protected under other South African laws as well. However, he regrets that this framework is yet to be fully implemented and urges the Government to strengthen measures and legislation against child labour. (Paragraph 69) The Special Rapporteur found that one of the biggest challenges facing minors was the lack of education. He was informed that some children who migrate to South Africa had not attended school for a long time and therefore had great difficulty in adjusting and attending school. Another reason for not attending school was that children had to work to support themselves or other family members. The Special Rapporteur underlines the obligation undertaken by South Africa to guarantee the right to education for everyone in both national and international instruments. Furthermore, he encourages the Government to improve the situation of unaccompanied minors residing in the country, and provide them with the rights to which they are entitled. (Paragraph 70) The Special Rapporteur expressed concern about the lack of information on the situation of unaccompanied children. To date, there are no exact figures on, for example, how many minors actually live in the country, where they reside or what their main challenges are. The Special Rapporteur therefore encourages the Government of South Africa to provide accurate data regarding the situation of children as well as on the measures taken to ensure their rights. Another concern relating to the lack of information is the fact that many children enter South Africa without documents, which makes it even more difficult for them to receive adequate help in health care, schooling and living conditions. The Special Rapporteur urges the Government to provide information on how many minors are undocumented and to facilitate providing them with legal documents. (Paragraph 71) The Special Rapporteur reminds the Government of South Africa about the principle of non-deportation of unaccompanied children, underlined on many previous occasions, and about the particularly vulnerable situation of children, who often have nothing to return to in their country of origin. Furthermore, children should be repatriated only if it is in their best interest, namely, for the purpose of family reunification and after due process of law. Finally, the Special Rapporteur recalls that, in previous reports,15 he called for the need to protect children in the context of migration, and especially migrant children moving across borders, with practical recommendations for consideration and action by States and other stakeholders. (Paragraph 72) The Special Rapporteur thanks the Government of South Africa for its invitation and for facilitating the visit, which allowed him to conduct meetings with all the authorities requested, civil society and the United Nations country team, as well as to conduct interviews with migrants, refugees and asylum-seekers. Despite the efforts made to protect migrants, including by providing assistance to migrants and their families, and recognizing that South Africa has taken measures to protect migrants, such as the process of regularizing Zimbabwean migrants, addressing the xenophobic attacks against migrants in townships and striving to alleviate the impact of the recent economic crisis, the Special Rapporteur noted that a number of challenges still need to be addressed, in particular the absence of a clear and comprehensive immigration policy, the lack of data and statistics, the question of detention of foreign nationals, access to health-care services and the situation of unaccompanied foreign children. In this context, the Special Rapporteur makes the recommendations below (Paragraph 73) The Special Rapporteur highlights the importance of an adequate legal framework for the protection of the rights of all children in the context of migration and the need to mainstream a child rights-based approach into migration programmes and policies. He encourages better collection of data at the national level and more thorough research on unaccompanied or separated children. He also recalls general comment No. 6 of the Committee on the Rights of the Child on the treatment of unaccompanied and separated children, in which the Committee provided useful guidance on the protection of the rights of unaccompanied migrant children. (Paragraph 86) The Special Rapporteur reminds the Government that migrant children, especially those that are unaccompanied, are most exposed to the worst forms of child labour and, in this context, recalls the relevance of the International Labour Organization Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, 1999 (No. 182) and relevant Recommendation No. 190, and their implementation framework. (Paragraph 87) Finally, the Special Rapporteur encourages the Government of South Africa, in its implementation of programmes, to provide unaccompanied migrant children with comprehensive support and protection, including means to identify those who are vulnerable and in need of international protection. Protection services should include access to food, health care and legal advice; support for return to the community of origin; professional and vocational training; and the pursuit of durable solutions in the case of refugee children. These programmes should also include reproductive sexual health awareness and training to address psychological trauma. (Paragraph 88) ______________________________________________________________________________ (A/HRC/18/32/Add.3 ) Report published: 4 July 2011 No mention of children's rights. ______________________________________________________________________________ Special Rapporteur on Adequate Housing National Obligations: South Africa is one of the few countries that have constitutional provisions recognizing and protecting socio-economic rights. The Constitution is often cited as an example for the protection of such rights. It explicitly addresses the right to adequate housing; section 26 states that “1. Everyone has the right to have access to adequate housing. 2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right. 3. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.” Section 28 (1) c of the Constitution also calls for the right of children to basic shelter. (Paragraph 8) Abused Children: The Special Rapporteur also visited a short-term transitional housing project for abused women and children that is being developed in Cape Town. The Saartjie Baartman Centre for Women and Children is an innovative one-stop women’s centre which offers a range of services, such as safe accommodation, counselling, job skills training and legal advice to women and children who experience domestic and/or sexual violence. Hosting up to 22 mothers and 30-40 children, the centre aims to assist abused women who do not benefit from housing subsidies. In 2006, the Centre collaborated with the Housing and Community Buildings Unit15 in launching a paper entitled Special Needs Housing: Developing an Approach for Policy Guidelines focusing on shelters for abused women and their children, children and youth, people living with/affected by HIV/AIDS and second stage housing for abused women and their children. (Paragraph 26) Children and Housing: The Special Rapporteur visited the Limpopo Province where Anglo Platinum’s PPL mining company has large mining operations which have already required the relocation of more than 6,000 people and from which 10,000 people are in the process of being relocated. Some community members alleged that the relocations were carried out without appropriate consultation or information, and without following adequate procedures. Many testimonies mentioned violence when police broke into their houses at night to carry out the evictions. The Ga-Pila and Mohlohlo communities, living under the threat of eviction, face serious health risks caused by exposure to open cast mines and explosions. Twenty-five families, including women and children in Ga-Pila, have been living without water and electricity for the last five years. Although the community previously had access to schools, clinics and churches, these were closed down after mining activity commenced. (Paragraph 65) The Special Rapporteur has consistently noted that women are particularly vulnerable to inadequate housing, in particular single women, women with children, women from indigenous communities, women with disabilities, migrant women and women with HIV/AIDS. (Paragraph 84) The Special Rapporteur acknowledges the efforts of the South African Government at all levels to meet its goal of delivering 30 per cent of housing to women-headed households. However, the lack of affordable housing, lack of timely access to public housing, and inadequate government provisions for long-term safe housing, particularly in rural areas, means that many women are still forced either to remain in, or return to, situations of domestic violence, and continue to live in inadequate housing where they risk the safety and health of their children and themselves. Such situations violate not only the right of access to adequate housing but the human right to be free from violence, which is protected under the South African Constitution. The Special Rapporteur draws particular attention to the need for the State to strengthen national legal and policy frameworks for protecting women’s rights to adequate housing and to provide avenues for redress where violations occur. He also draws attention to the need to bridge the gap between legal and policy recognition of women’s right to adequate housing and implementation by States of national programmes to execute the legal and policy framework, including supporting initiatives by civil society groups to the same end. (Paragraph 85) Vulnerable Groups: The Special Rapporteur appreciates the efforts recently undertaken to address the situation of some particularly vulnerable groups.63 Nevertheless, the Special Rapporteur believes that there is a critical lack of coordinated countrywide housing and support for people with particular housing requirements, including people with disabilities, those living with HIV/AIDS, orphaned children and young people, and the homeless. According to official data, the South African HIV-positive population is estimated at approximately 5.3 million. (Paragraph 88) The Special Rapporteur welcomes initiatives that engage relevant groups in the design and implementation of housing policies targeting groups particularly vulnerable to discrimination. For instance, the draft special needs housing policy of the city of Cape Town is the outcome of a process of consultation with relevant organizations and service providers. It also includes input and comments from consultative workshops led by the city. In the meantime the first application for special needs housing subsidies has been endorsed by Cape Town’s social housing department and will target foster care homes for orphans and vulnerable children. (Paragraph 90) ______________________________________________________________________________ Special Rapporteur on Terrorism No mention of children's rights. ______________________________________________________________________________ Working Group on Arbitrary Detention Relevant Visits: The Working Group was able to visit the following detention centres and facilities: the Pretoria Central Correctional Centre, the Leewkop Maximum, Medium and Juvenile Correctional Centres, the Lindela Repatriation Centre, the Gauteng Province Youth Place of Safety near Krugersdorpf, the immigration facilities in Musina at the border with Zimbabwe as well as the police station, the Polokwane Central police station, the Grootvlei Prison in Bloemfontein as well as the Muangang Private Prison and the One Stop Child Centre, the Drakenstein Maximum Prison in the Cape Town area, the Stellenbosch Correctional Centre as well as the Pollsmoor Female Correctional Centre and the Lentegeur Psychiatric Hospital. The Working Group also attended a hearing before the High Court in Pretoria and saw border processing at the immigration facility in Musina at the Zimbabwe border. (Paragraph 4) During the entire visit and in all respects, the Working Group enjoyed full cooperation by all levels of government and all the provinces visited. The Working Group was able to visit all the detention centres and other facilities that it requested to see. In all these facilities, the Working Group has been able to meet with and interview whoever it wanted - police cells, pretrial detainees, convicted persons serving their sentence, repatriation centres, women, minors, persons held in disciplinary quarters and psychiatric hospitals, all chosen at random. In this context, it is particularly relevant to stress that the Government allowed the Working Group to change its itinerary and adapt it before and during the visit so as to maximize the number of detention centres to visit and authorities to meet, all at the request of the Working Group. The Working Group wishes also to acknowledge the good interaction it had with all detainees interviewed; all welcomed the visit of the Working Group and were very keen to give their testimonies and state their complaints in a very open and transparent manner. The Working Group reiterates its gratitude for the authorities’ transparency and cooperation. (Paragraph 60) Detention of Minors: Although the South African Constitution, in section 28 (1) (g) does not prohibit detention of minors, it specifies that detention should be used as a last resort and when applied, in separation from adults and for the shortest period of time possible. There is at present no provision for a separate juvenile justice system, although a Child Justice Bill, which would establish such a separate system, is being discussed and amended by the Parliamentary Portfolio Committee. (Paragraph 43) The minimum age for criminal responsibility is at 14 years, except for offences which carry a life sentence where it is at 16 years. At 14 years a minor can be sentenced to a detention sentence and also spent time in a pretrial detention centre. The decision to prosecute a minor (a person who at the time of committing an offence was less than 18 years old) depends on the Prosecutor. (Paragraph 44) In some cities or neighbourhoods, programmes have been set up where places of safety for children have been created, which provide facilities where young offenders are brought in after arrest instead of police cells, and where social workers, along with prosecutors, interview, provide counselling, offer education and social work programme to juveniles for less serious offences in order to avoid prosecution and detention. Where one-stop child centres have been established, only in cases of murder, aggravated rape and assault will minors be sent to prison while awaiting trial. Minors sentenced to prison will be separated from adults. In other regions, local authorities have set up closed places of safety that function like boarding facilities where pretrial juveniles are offered educational, social and recreational programmes according to their age, so that when they will go to court they will be able to demonstrate integration and rehabilitation into the community. These reforms have contributed to a decrease in the number of minors in detention, but not yet covered all the young offenders. (Paragraph 45) The Working Group can only commend the Government and the South African institutions when looking at the Constitution, which contains all the necessary provisions to protect and safeguard human rights, including the guarantees against arbitrary detention and the right to a fair trial. As well, the Criminal Procedure Act and other laws that regulate detention of juveniles and the mentally ill have been modified or re-enacted so as to guarantee conformity with the international instruments for the protection of human rights, to which South Africa is a party. (Paragraph 54) As part of this constant evolution, the Working Group supports the orientation of the current correctional policy geared towards rehabilitation and reinsertion that is taking place in the correctional system, where education and vocational programmes are being offered to sentenced detainees. This evolution has taken place also towards young offenders with the One-Stop Child Centres and Places of Safety, to protect children and juveniles and as far as possible avoid placing them in the judicial process and the correctional system, an effort applauded by the Working Group. (Paragraph 57) The Working Group notes that a high rate of incarceration, in the context of a high level of criminality due to economic difficulties and persistent inequalities, has led to a very large prison population. The Working Group noted that many convicts served long sentences and that time spent in pretrial detention was often not taken into account. Moreover, the situation of pretrial detainees is worse than that for convicts, particularly when they are held in police cells. The Working Group is also worried about the high rate of police brutality, including deaths of suspects in custody. Also of concern is the situation of young offenders, often charged with serious crimes, but for whom no separate justice system is yet established. (Paragraph 84) The Working Group encourages the Government to continue the reforms already engaged in order to improve the treatment of young offenders and to set up a specialized justice for minors in conformity with articles 37, 39 and 40 of the Convention on the Rights of the Child, to which South Africa is a party. The Working Group therefore recommends that pretrial detention for minors be practised as an exceptional measure applied only in last resort, that minors under the age of 16 be excluded from the correctional system and that separate institutions be established for minors under 18 who are sentenced to detention. (Paragraph 88) Legal Aid: The Working Group has been given the impression that legal aid lawyers are understaffed and have to deal with a very high number of cases. As well, the negative perception of legal aid lawyers amongst the detainees, but also in the courts, account for the fact that some detainees, even juveniles, have waived their right to a public defender and decided to defend themselves alone, not even knowing the inevitable complexities of criminal procedure. The Working Group also points out that legal aid is not available for persons detained in the Immigration Act who would desperately benefit from legal assistance. (Paragraph 59) Incarceration Rates: In the context of economic difficulties and persistent inequalities rooted centuries ago, the alarming high rate of criminality has led the Government - under pressure from the public and the media - to adopt a tough-on-crime approach that resulted in a very high rate of incarceration. According to statistics given to the Working Group, on 19 August 2005, the total inmate population was 155,447, including 45,547 awaiting trial, with an overcrowding rate of 164 per cent. Meanwhile, the total number of juveniles in detention reached 2,227, of whom 1,210 were unsentenced. (Paragraph 62) Another significant factor affecting the size of the prison population has been the harsh and long sentences given by the courts and the mandatory minimum sentences that are applicable to a range of offences, the most common amongst them being murder, aggravated rape and aggravated armed assault. This situation has led not only to a worrisome number of persons in detention serving long sentences compared to the gravity of the crime committed, but it has led to an alarming rate of overcrowding in detention facilities, affecting the convicts, pretrial detainees and in particular juveniles. The Working Group is aware that the minimum sentencing legislation was introduced in 1997 to reduce the possibility of discrimination, a legacy of the racial history of the criminal justice system. The Working Group is, however, concerned by its multiple negative impacts. (Paragraph 63) Pretrial Detention: All the judges and lawyers met by the Working Group were very critical about this legislation. They denied its effectiveness and, according to them, it undermines the principle of equality before the law, since it is applied only to certain categories of severe offences. This legislation is also criticized as restricting the discretionary power of judges in giving an appropriate sentence that would take into account the circumstances of each case and the character of the accused. The Working Group has thereby noticed with concern that pretrial detention is being applied in a systematic manner even for minors, when these are accused of a crime that falls under the application of the mandatory minimum sentencing. (Paragraph 64) The Working Group wishes to mention that delays affecting cases before courts are due in most part in the management of the courts and concern mainly cases under appeal. The Working Group is also concerned about juveniles detained awaiting trial in police cells or in maximum security prisons, and would like to stress that no minor should be detained in these conditions, even for the most serious charges. (Paragraph 71) ______________________________________________________________________________ Special Rapporteur on Indigenous Peoples Land Rights: The Special Rapporteur met with representatives of the Khomani San community, including the traditional leadership, which spearheaded the original land claim, and visited the lands they had received under the claim. He heard their complaints and saw that indeed the land was not being put to productive use. The SAHRC finds that there currently exists a situation of disarray among the Khomani San people who benefited from the land claim process and a situation of incoherent management of the Kalahari land. The Commission concludes that, despite the great deal of effort which went into the planning and achievement of a successful land claim, the implementation phase failed to initiate a process of sustainable development, to protect basic human and other rights of the land claim beneficiaries. It recommends that the Khomani San Development Strategy be implemented by the Local Municipal Council without delay. The Special Rapporteur strongly supports these and other recommendations made in the Commission’s report and agrees that this has been the result of a sad story of neglect. He expects the Government to take up the challenge without delay, so that the Khomani San’s land claim can become, in the words of their traditional chief, an area that would exist for “years and years and for all my children and their children”. (Paragraph 42) Indigenous Children: Special mention must be made of the specific grievances of indigenous children, youth and women, who reported discrimination, violence, drug abuse, high suicide rates, prostitution, alcoholism and other syndromes associated with marginalization and poverty, as is so common among indigenous peoples elsewhere. Another major area of concern to San and Khoe women is the unacceptably high level of domestic violence. Violence in some communities is so extreme that it includes murders and assaults with weapons. Violence is often associated with alcohol abuse and low self-esteem by men and women. (Paragraph 63) The United Nations country team should find ways to increase the attention of their respective agencies and programmes to the needs of indigenous peoples and concentrate on specific coordinated programs concerning indigenous communities in South Africa, with particular emphasis on the needs of indigenous women, youth and children. (Paragraph 105) Indigenous Languages: There is almost no Nama literacy and the language is not taught in South African schools (a pilot project is being introduced in one village). The ancient !Khomani language, N/u, has no standardized alphabet system and most of its surviving speakers are over 60 years of age, thus less likely to grasp literacy skills. Neither !Xû nor Khwedam have standardized alphabets, making literacy initiatives particularly difficult. The stigma associated with the languages (particularly Nama) by young people requires special attention by educators and policy-makers when introducing the languages to the curriculum. All indigenous languages in South Africa are under serious threat of extinction. (Paragraph 66) Poverty Reduction: Poverty reduction strategies focused on the needs of specific groups must include also the indigenous communities, just as they are now focused on women, youth, or people with disabilities. This will require an assessment of the specific needs and requirements of these communities and the use of disaggregated data (which do not exist at present) when monitoring the results of such policies. (Paragraph 90) ______________________________________________________________________________ Special Rapporteur on Judges and Lawyers Relevant International Obligations: South Africa has ratified, inter alia, the International Covenant on Civil and Political Rights; the International Convention on the Elimination of All Forms of Racial Discrimination; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Rights of the Child; and the Convention on the Elimination of All Forms of Discrimination against Women. It has signed the International Covenant on Economic, Social and Cultural Rights. (Paragraph 17) Rape: Judges, many of whom were opposed to CLAA from its inception, have continued to criticize it for limiting their discretion. Even if this objection can be set aside, judges have difficulties in applying the legislation. Only a limited number of crimes are covered while other serious crimes are not dealt with at all (kidnapping, for example, is not included), thus disturbing the proportionality in the seriousness of various types of crime. Most importantly, judges have interpreted inconsistently the “substantial and compelling circumstances”, which have to be present before departure from the prescribed minima is allowed. Where judges have thought that the prescribed sentence would, on balance, be too harsh they have sought to find “substantial and compelling circumstances”. In the process they have both incensed the public and are seen to defeat the legislative objective of consistent toughness. In one notorious case a father who raped his young daughter was not given the mandatory minimum sentence for that crime on the ground that he represented no threat to the public at large and that constituted a “substantial and compelling circumstance” justifying a lesser sentence. (Paragraph 60) ______________________________________________________________________________ Special Rapporteur on Racism Public Spending on Children: The system was sustained through oppression and the constant use of violence against Blacks, who suffered the greatest discrimination although they comprised the largest group (over 70 % of the population). The Blacks were relegated to the outskirts of towns, in townships and in bantoustans / Supposedly autonomous territories that were in fact reserves to which a dozen or so ethnic African groups were banished, from 1951, in order to keep them away from urban centres inhabited by Whites., where they lived in makeshift constructions without running water, electricity and basic sanitation. They were reduced to a cheap labour force, working as domestic servants, in mining and in agriculture. They received a rudimentary and poor quality education. A study published in 1987 estimated that public spending for each black child was less than a sixth of that for a white child / South African Institute of Race Relations, Social and Economic Update, 8 November 1987. (Paragraph 5) Childcare: The development of human resources “deals with education from primary to tertiary level, from child care to advanced scientific and technological training. It focuses on young children, students and adults. It deals with training in formal institutions and at the workplace.” (Paragraph 32) Education: Some previously White-dominated schools refuse to admit Blacks. One example is Vryburg school, about 200 km from Pretoria. Black children have been turned away when their parents wanted to enrol them “in case they lowered standards”. Most of the parents association and the teachers are Whites, as is the chief of police, who makes little effort to apply the law. (Paragraph 45) ______________________________________________________________________________ Special Rapporteur on Toxic & Dangerous Products No mention of children's rights. ______________________________________________________________________________
Please note that the language may have been edited in places for the purpose of clarity.
Olivier De Schutter
(A/HRC/19/59/Add.3 )
Country visit: 7 to 15 July 2011
Report published: 13 January 2012
Jorge Bustamante
(A/HRC/17/33/Add.4 )
Country visit: 24 January to 1 February 2011
Report published: 2 May 2011
Country visit: 10 to 19 November 2010
Miloon Kothari
(A/HRC/7/16/Add.3 )
Country visit: 12 to 24 April 2007
Report published: 29 February 2008
Martin Scheinin
(A/HRC/6/17/Add.2 )
Country visit: 16 to 26 April 2007
Report published: 7 November 2007
(E/CN.4/2006/7/Add.3 )
Country visit: 4 to 19 September 2005
Report published: 29 December 2005
Rodolfo Stavenhagen
(E/CN.4/2006/78/Add.2 )
Country visit: 28 July to 8 August 2005
Report published: 15 December 2005
Dato’ Param Cumaraswamy
(E/CN.4/2001/65/Add.2)
Country visit: 7 to 13 May 2000
Report published: 25 January 2001
Glele-Ahanhanzo
(E/CN.4/1999/15/Add.1)
Country visit: 24 February to 5 March 1998
Report published: 27 January 1999
Fatma-Zohra Ksentini
(E/CN.4/1998/10/Add.2)
Country visit:10 to 21 August 1997
Report published: 8 December 1997