Human rights body turning into a white elephant

A senior member of the royal household was one of the first high profiles figures who took advantage of the establishment in September 2009 of the Commission on Human Rights and Public Administration, a national human rights watchdog, in the kingdom and filed a complaint with the commission.

She had hoped - although she may have suspected chances were down to zero the commission would tackle her complaint - that alleged violations of her fundamental rights would be investigated and dealt with in terms of the law.

She was not alone. A number of Swazis had high hopes that rampant abuses of fundamental human rights, particularly by state agencies, would be effectively addressed after the commission had been put in place.
Swaziland is one of the countries in the world with a poor track record on human rights. Police have been identified in international reports as major culprits in the violation of human rights.

It is not likely the hopes would be converted to anything meaningful anytime soon because the commission is yet to function effectively. Currently, it is as good as dormant.

The commission is insufficiently funded, ill-equipped for its mandate and, therefore, unable to function.

The lack of political will to protect human rights on the part of government is one reason the commission has not been able to take off.

It makes sense for government to comply and establish the commission. In government circles, the commission may be a necessary evil. With a human rights monitoring agency in place, government on one hand could afford to look squarely in the face anybody alleging violation of fundamental human rights in the kingdom.

On the other, the commission - if adequately funded and functional – could create problems for government. It can always pull the reins on government for human right abuses, abuse of office and bad governance.

If the commission had been efficiently running, for an example, the allocation of crown land by a cabinet minister to cabinet colleagues or the controversy over payment of E31 million for land could have drawn full attention of the commission.

The international community had an influence in the establishment of the commission as required by the constitution. In 2008, experts from the Commonwealth were in the country to assist government set up the commission.

However, government always has a way to come out tops in such situations. For now, it comes naturally to apportion all blame for the unsteady progress of the human rights commission to the fiscal crisis. But if precedent is anything to judge government by, the fiscal crisis becomes the perfect scapegoat. The lack of political will is plausible.

The Smart Partnership Secretariat – desired and fully supported by the kingdom’s leadership - established around the same critical period is, however, up and running with necessary funding. Last year, it organised and held regional and national dialogues. It can be safely said there was political will to have the Smart Partnership up and running in the shortest possible period.

The same cannot be said of the Anti-Corruption Commission. At some stage, government was accused of being too slow to set up the ACC. It took government almost 10 years to have the ACC up and running.

The ACC was legally established in 1992 but remained dormant until 1998 when it was elevated to paper tiger status while government embarked on an anti-corruption rhetoric.

According to the July 2005 constitution, the Commission on Human Rights and Public Administration (Human Rights) should have been in place within a year of the first meeting of parliament after commencement of the supreme law.

The Human Rights Commission was announced four years after the commencement of the constitution.
The commission had hardly settled down when government snatched its chairman, Reverend David Mathse – a retired lawyer. He was appointed into a ministerial position to be sacked a year later after he stood against the illegal dismissal of a judge.

Acting chairperson of the commission, Sabelo Masuku - a private legal practitioner – concedes the human rights watchdog has not functioned effectively since inception.

Interviewed by The Nation, Masuku said this was because the commission has been insufficiently funded. For the better part of its existence, the commission had to draw funds from the budget of the Principal Secretary in the Ministry of Justice and Constitutional Affairs.

“The Commission had no budget for the half year when it came into office and the same can be said about the financial year running 2010/2011. For the commission to be effective it requires adequate funding, a full time Secretariat, equipment and decentralised offices,” said Masuku.

Masuku said an operational budget was drafted and submitted by the Commission to government which would have enabled it to have a secretariat, office equipment, such as recording systems for public hearings, advertising and to run programmes of the commission. Government did not avail the required necessary funds.

Without a secretariat, it becomes almost impossible for the commission to operate as there is nobody manning the office on full time basis.

“A full operational mechanism will ensure, for example, that when a complaint is filed there is capacity to investigate the violation where necessary, call the parties for mediation, or where appropriate conduct a public hearing (which can only happen with full audio recording equipment) publish or advertise reports and effectively execute the decisions of the Commission (which can also happen once there is full legislation).”

Overwhelmed by financial problems, the commission had to abandon plans for the effective exercise of its duties. It could not conduct civic education, advertise or move around to all four regions of the country.

“The commission took a conscious decision not to carry out civic education campaigns because it would be inundated with the public’s complaints without the necessary capacity and facilities to respond to them. That would be chaotic,” he said.

He said the commission should be by now fully operational and armed with the necessary pieces of legislation to deal with the complaints lodged.

“Looking at the commission’s mandate, the complaints received by the commission from the public on violation of human rights between individuals, in communities and in the country as a whole, the commission should by now be fully capacitated with its legislation in place, secretariat and fully equipped.”
Masuku has not lost hope. The commission is still pushing government for funds. The good times are set to roll back as revenue from SACU improves in 2012/13. Minister of Finance Majozi Sithole, due to table government’s budget this month, earlier announced that E7 billion is due from SACU in April. This reflects an over E5 billion improvement to last year’s. Government is already looking into throwing a feast to mark the silver jubilee.

“The commission is working hard to get the necessary funding from government for effective execution of its mandate,” Masuku said.

In instances of protest action by workers or political formations where human rights abuses in particular by security forces are a common feature, the commission is found wanting. It is unable to monitor the situation for human rights violations because it has no investigators.

Masuku said individuals or groups that suffered violations of their fundamental rights during protest marches have not reported anything to the commission. Last year, in one protest action police decided to ban other people from partaking in the action.

Others, to prevent them from participating in the action, were loaded into police trucks and dumped in remote parts of the country. The police activities against protesters received wide media coverage.

“This is, however, not to say that the Commission has not read in the media especially print media about these allegations. The challenge faced by the commission in responding to such complaints is mainly the non-existence of investigating officers whom it would have to independently monitor the protest marches so that it can be in a position to verify first hand any alleged violations and take appropriate and informed decisions on these matters.

“The commissioners themselves cannot be on the ground, prosecute and decide on these issues without contravening the rules of natural justice. The commission must not only comment on issues but execute its mandate fully and this cannot be achieved without the necessary tools,” he said.

It’s a relief that the human rights commission still takes seriously in its dealings the rules of natural justice.
The commission was established without any legislation such as the Human Rights Act and the Leadership Code of Conduct.

“When the commission was established it had no ‘enabling’ legislation, namely the Human Rights Act and the Leadership Code of Conduct Act. It is correct that the provisions of the constitution are substantial for the establishment of the commission, but obviously fall far too short to operationalize the commission.”

There is nothing unusual about this. The Land Management Board found itself in similar situation.

Government established the board without putting in place first the necessary legislation for its operations. The functions of the board came under severe strain during the land debacle allocated to cabinet ministers.
Minister of Housing and Urban Development, Lindiwe Dlamini, had ignored the board’s advice in allocating land to her colleagues.

The commission, besides human rights and public administration, is also mandated to deal with corruption.
The commission is called to investigate instances of alleged or suspected corruption and misappropriation of public funds or property by officials. It also has to eliminate or foster the elimination of corruption, abuse of authority or public office.

The Anti-Corruption Commission is also empowered to take necessary measures for the prevention of corruption. It is not in doubt that there is a duplication of functions between the ACC and Human Rights Commission.

Said Masuku; “It is correct that there are some areas of the Constitution and those of the provisions of the Prevention of Corruption Act that overlap There are however current ideas in place to harmonise the two legislation.

“In any event, you will note that the Anti-Corruption Commission is well resourced and better placed to execute this mandate unlike the Human Rights Commission. The best way we can avoid a duplication of functions and the scarce resources is to harmonise this overlap.”

The ACC denied a duplication of functions of the two bodies. It said the functions are complementary.
“The functions are complementary. However, there may be disputes in future and the ACC has referred these fears to the Ministry and if possible to be resolved by legislation.”

The human rights commission’s offices are at Nkhanini, Lobamba. In its early days, the commission had expressed concern about the location of its offices. Nkhanini is a traditional zone and gaining access to the offices for certain people dressed in a certain way could be near impossible.

Masuku is doubtful the cash-strapped government would be moving the commission’s home from Nkhanini anytime soon.

“The issue regarding the seat of the commission was raised a long time ago by the commission. 
It is clear though that with the current financial challenges the country is faced with, the commission will be occupying the current office for a while.”

The commission is not sitting down though waiting for government. Masuku said the commission has made arrangements with the Ministry of Justice and Constitutional Affairs for alternative venues through-out the four regions