How independent is the HRC?

A CRITICAL TEST of the Human Rights Commission's findings and recommendations on racism in the media that are due next month will be its handling of the ANC's submission to the hearings on the subject. In the course of that submission the party specifically accuses Mail & Guardian editor Phillip van Niekerk of writing an article criticising Thabo Mbeki but running it under the by-line of Lizeka Mda, now a senior editor on The Star. Both journalists have emphatically rejected the charge and van Niekerk has lodged an application with the HRC to investigate criminal charges against public enterprise minister Jeff Radebe, who delivered the statement on behalf of the ANC. It is an offence to present false evidence to the HRC and observers will be watching closely to see what action, if any, the Commission takes on this matter.

During its short existence the HRC has shown that it is not afraid to criticise the ANC or tackle issues that could embarrass the ruling party, and van Niekerk's application may prove no exception. The 1998 poverty hearings that were conducted jointly with the NGO Coalition and Gender Commission allowed the rural poor at centres all over the country to bear witness to their plight and how little had changed for them. The HRC's latest annual report touches this raw nerve again, implicitly accusing the ANC government of failing adequately to address the challenges of continuing poverty and growing disparity between rich and poor. "Five years into the democratic dispensation, the social inequality gap continues to increase," it says. "It appears that the poor are getting poorer and the rich richer. The gap in pay levels between the highly paid and the lower levels remains high. Unemployment is not decreasing appreciably. The result is that many people continue to live on too little". Those are not the sentiments of an institution whose devotion to the government - which funds its activities to the tune of R17.3 million a year - exceeds its broader obligations to human rights and, by implication, justice and equity.

The HRC has also taken up the complaint of Dr Costa Gazi, the Pan Africanist Congress health spokesman, that government is denying reproductive rights to pregnant women who are HIV-positive because it refuses to provide them with the anti-retroviral drugs that prevent transmission of the disease to their children. It has been persistent in requesting the embattled health minister to respond to its questions on that matter.

The fighting temperament of the HRC chairman Barney Pityana is crucial to the Commission's record and the issues that it chooses to campaign on. A founder member of the black consciousness movement who became an active supporter of the ANC - though he never joined the party formally - he is also a lawyer and Anglican priest. Pityana's combative disposition is not immediately evident. His ample girth suggests a Friar Tuck-like geniality, but beneath that exterior image is a passionate commitment to liberate blacks from the psychological and political burdens of the apartheid past. His ire and agile mind are not reserved for attacks on sanctimonious white liberals or white conservatives mouthing liberal platitudes. He gained notoriety during a television debate in February 1996 when he called the respected human rights lawyer Dennis Davis "a racist" because he had questioned the exclusion of white human rights lawyers from the original 11 people chosen to serve as HRC commissioners. In retrospect, Davis - a man who shuns the designation "white liberal" - sees this as a seminal point in post-apartheid South Africa, because it marked the first attempt to force closure on a debate by using the race card against criticism emanating from the left rather than the right.

Pityana can be critical of his former ANC comrades, particularly those whose heads have been turned by the power and privilege that come with occupancy of high office. He has dared to complain publicly about the "deterioration in the human rights environment" since Thabo Mbeki took over as president last year. "It appears that government strategy is, at best, to play down the human rights base of our constitutional system," he says. "Several high profile actions suggest that human rights have become more of a burden to the drive for tangible outcomes in the struggle against crime." In February, Pityana and HRC Commissioner Jody Kollapen made a well-publicised visit to the Lindela Repatriation Centre after the arrest of hundreds of suspected illegal foreigners during a police raid in Hillbrow, Johannesburg.

Pityana reserves his sharpest criticism for two cabinet ministers: safety and security minister Steve Tshwete, for his "expressed reluctance" to implement an amendment to the Criminal Procedure Act restricting the use of firearms by police, and justice minister Penuell Maduna for his "conspicuous silence" on the need to protect human rights. These criticisms have clearly stung Tshwete and national police commissioner, Jackie Selebi, who refer scathingly to the meddling "high priests of human rights". The HRC annual report stresses the importance of fighting crime without negating the nascent culture of human rights. "We fear that a populism that dwells only on the fears of the people may lead to autocratic behaviour and in the long run undermine the very rights South Africans have struggled for," the report states.

But the HRC, too, has the powers to behave autocratically. Defined in Chapter 9 of the Constitution and the preamble to the Human Rights Acts of 1994, the aims of the Commisssion are anodyne enough - to monitor, promote and protect human rights. But the law also provides it with wide-ranging powers of search and seizure on mere suspicion of a violation of human rights, as well as the power to issue subpoenas. Pityana himself has described these powers, which include the power to search premises without a warrant and to order the disclosure of information that may be self-incriminating, as "frightening and overwhelming".

Last year the HRC issued subpoenas to more than 30 provincial and government departments which had failed to supply information on measures taken to realise economic and social rights. Its powers can and are being used to shield individuals against the state, but they can as easily be directed against civil society too. The Commission served subpoenas on dozens of editors and journalists, including the editor of the London-based Financial Times, to give evidence at its public inquiry into racism in the media, with the threat of imprisonment if they refused. Even though the subpoenas were later withdrawn when editors agreed to attend voluntarily, great damage has been done, both at home and abroad, to the image of press freedom in the new South Africa.

Many thousands of words have been written about the hearings, which may turn out to be the HRC's defining moment. President Thabo Mbeki himself has unequivocally defended the investigation. In a reply to a protesting letter from the presidents of the World Association of Newspapers and the World Editors Forum, he describes the HRC as an independent institution and defends its decision to probe racism in the media after receiving complaints about it from "members of the public". The original "members of the public" were the Black Lawyers' Association and the Association of Black Accountants of South Africa. Their complaints against just two newspapers, the Mail & Guardian and the Sunday Times, were so insubstantial that they had to resort to the notion of "subliminal racism". This means that the newspapers have been charged with propagating racism without their readers being aware of it: hardly the evidence on which a prosecutor could build a case in a court of law and certainly not a justification for launching an investigation against the media as a whole.

There are two further reasons why Pityana should have been cautious about launching a general inquiry into the media. The first is that the complainants did not raise their concerns with the two publications before seeking the intervention of the HRC. The second is that Pityana had already made up his mind on the issue before him. As far back as August 1997 he co-authored an article in the Sowetan, in which he asserted that the media continued to propagate "subliminal racism by creating a negative image of Africans". As Howard Barrell of the Mail & Guardian observed, Pityana's pronouncement constituted a powerful case for recusal, while the former HRC commissioner Rhoda Kadalie commented that the Commission should investigate its own racial bias before presuming to interrogate journalists about racism in the media.

During the parliamentary debate on the HRC on March 1, a number of Opposition speakers raised the subject of the Commission's own racial bias. Marthinus Van Schalkwyk, leader of the New National Party, referred to the recurring resignation of HRC commissioners who are not black Africans. "There is clearly something wrong at the HRC," he said, noting the resignations of Helen Suzman, Max Coleman, Rhoda Kadalie, Anne Routier, Chris de Jager and Sheena Duncan (the latter resigned from the HRC Trust, not the HRC per se). "Instead of the HRC becoming a unifying force, commanding respect in the fight against racism, it risks becoming a polarising force through its own actions," he warned.

Pityana responded vigorously in a letter, insisting that only one of the commissioners (Coleman) had left after a disagreement; the others had left variously because of age (Suzman), health (Routier) and career advancement (De Jager). However, he admitted that Kadalie, now one of the HRC's most trenchant critics, "left in a blaze of publicity". Kadalie explicitly criticised the HRC for the lack of vision and poor leadership when she left, while Routier cited the HRC's over-emphasis on race and underemphasis on "socio-economic delivery" as the reasons for her resignation.

Some former commissioners have chosen to hold their tongues in public. In private, however, one or two are less discreet. They have criticised the HRC for inefficiency, and especially for outsourcing work they are paid to do and for showing a preference for expensive trips abroad to fulfilling less glamorous but vital tasks at home. Thus when editors were subpoenaed to attend the HRC hearings on racism Pityana was abroad and a relatively junior official, HRC public relations officer Siseko Njobeni, was left to deal with the initial storm of protest.

Democratic Party leader Tony Leon also took up the theme of HRC bias in his contribution to the same parliamentary debate. Reminding the assembly of the Dennis Davis incident, he then charged Pityana with using the HRC's formidable powers to launch "a witchhunt" for suspected racists. "The initial inquisition represented a blatant attack on the freedom of the press (and) an attempt to silence dissent and shut down criticism of the ruling party," he said. He went on to record "a disturbing confluence of interest between the actions of the HRC and the agenda of the ruling party". In his letter of reply Pityana accuses Leon of slandering him in a personal attack "the viciousness of which left me wondering whether I would be safe in a government under your party", adding melodramatically, "Thank God the gallows have been dismantled and Robben Island has been put to better use." Pityana does not specifically deny a "confluence of interests" between the HRC and the ANC. He does, however, stress that the HRC is an independent institution beholden to no one party, no matter how powerful."

A key decision for the HRC panel charged with preparing the forthcoming findings and recommendations on racism in the media is which definition of racism the panel adopts. The heavily criticised - and outsourced - research by Claudia Braude, which constitutes a major proportion of the HRC's interim report, equates criticism of ANC politicians, notably Mbeki and Gauteng Premier Mbhazima Shilowa, with anti-black racism. The possibility that criticism may be ideological rather than racial, or that it may focus on administrative incompetence and not skin colour, is apparently excluded from her research paradigm. Describing her research as "deeply flawed", Guy Berger, professor of journalism at Rhodes University, says: "Braude went in search of racism in the media and found it everywhere, much like the apartheid regime used to discover reds under every bed and behind every bush." Her general indictment of newspapers for anti-black racism extends, without explanation, to newspapers that are black-owned and black-edited. The ANC's broadly couched charge that the media peddle anti-black racism but not anti-white racism largely converges with that of Braude and the definition proposed by HRC panellist Margaret Legum.

In Legum's view racism in South Africa is a phenomenon confined to whites since it is an assertion of white superiority emanating from the structures of white supremacy. Her definition excludes black racism in advance since for most of South Africa's history blacks were subject to white rule and power. This view discounts the six years of governance by a black-dominated government and fails to recognise that by the 1970s and 1980s whites were not all-powerful: that as black resistance grew, white power diminished. Black racism, like white racism, is visibly present in many parts of the globe and it seems bizarre to argue that it is absent in South Africa alone.

Two further points should be considered when weighing up the independence of the HRC against accusations of its confluence of interests with the ruling party's agenda. First, at the end of its submission, the ANC outlines a programme of action to address the issue of racism in the media, including "a serious and transparently monitored effort to deracialise" media ownership, management, editorial control, and the senior echelon of journalists. It goes on to suggest that the Human Rights Commission take the lead in this matter and not merely close its inquiry into racism in the media by publishing findings for the record.

Second, the HRC's legal armoury has been reinforced recently by the controversial Promotion of Equality and Prevention of Unfair Discrimination Act, which the Commission itself played a key role in drafting. The law extends the HRC's power in three ways. It empowers the HRC to conduct investigations into allegations of persistent contraventions of the Act. More important it allows the HRC to take the initiative and bring cases of unfair discrimination before the special equality courts, which are currently being set up. It also makes it possible for the HRC to be awarded damages, if it qualifies as "an appropriate institution" (in earlier drafts it was expressly named in this regard). This may give it a financial incentive to initiate actions against institutions and individiuals, especially if they are rich.

After South Africa's history of racial oppression and the denial of human rights to the black majority, most South Africans concur with the need to foster a human rights culture. There is no reason on the available evidence to believe that the HRC is anything other than an institution independent of government or any political party. The danger is not so much that the Commission might wilfully advance a party political agenda behind a facade of concern for human rights or cynically talk about promoting human rights while systematically extending its own powers. The danger lies more in the possibility of government using the Commission to further its own interests, especially to dampen press criticism, under the guise of the shared desire to eliminate racism.

Far from excising racism in the media, some observers believe that the hearings have made journalists more race conscious and so contributed to a further advance of what Dr Mamphela Ramphele, formerly vice-chancellor of the University of Cape Town, has termed "the culture of silence", in which whites are reluctant to criticise the government for fear of being dubbed racists and blacks hold their tongues in case they are accused of being traitors.

Focus 18, June 2000.
Patrick Laurence is an assistant editor on the Financial Mail.