Practical challenges facing National Human Rights Institutions (NHRIs) in Southern Africa: A case of South Africa and Zimbabwe

Author: Zororai Nkomo
Centre for Human Rights, University of Pretoria

Introduction

The world over, states have the primary responsibility of ensuring that human rights are respected, protected and fulfilled. As entities who negotiate and ratify international human rights instruments, and they must create safeguard mechanisms for people to enjoy these rights.[1] States often establish national human rights institutions in line with the Paris Principles as part of the institutional architecture for the fulfilment of their international human rights obligations. In this regard in 2014, the South African Human Rights Commission Act 40 of 2013 was enacted to replace the Human Rights Commission Act 54 of 1994.[2] The coming into force of this new Act witnessed the expansion of the powers of the commission in line with the Paris Principles.

In the case of Zimbabwe, the ushering in of the 2013 Constitution heralded the dawn of a new epoch in the jurisprudence of human rights, constitutionalism and democracy. The entry into force of a new constitutional dispensation saw the scrapping of the Lancaster House Constitution[3] and created the Zimbabwe Human Rights Commission (ZHRC) as the country’s national human rights institution (NHRI).   

The purpose of this piece is to critically analyse and assess the main practical challenges facing South Africa’s Human Rights Commission (SAHRC) and Zimbabwe Human Rights Commission (ZHRC) to protect and promote constitutionalism in general and human rights in particular.

Political interference

Political interference has been the major stumbling block for NHRIs to execute their constitutional mandate promoting constitutionalism and respecting human rights. For example, South Africa’s then Public Protector, Lawrence Mushwana[4] a card-carrying member of the African National Congress (ANC) once defended a grand corruption scandal in South Africa during the infamous Oilgate Scandal where he declined to investigate the R11 Million of state funds allegedly funnelled to the ANC just before the 2004 elections. However, despite the scandal, he was then appointed the chairperson of SAHRC. In 2019, the then Zimbabwe’s Minister of Justice, Legal and Parliamentary Affairs Ziyambi Ziyambi attacked the Zimbabwe Human Rights Commission Report which revealed that law enforcement agents meted human rights violations on civilians as being biased.[5] Such challenges confronting the NHRIs impair the effectiveness of their constitutional mandate.

Intimidation of NHRIs

The SAHRC and ZHRC continue to face intimidation which negatively impacts the efficient execution of their constitutional mandates. In South Africa, both the office of the Public Protector and SAHRC faced intimidation over the investigation of former President Jacob Zuma’s famous Nkadla debacle.[6] In Zimbabwe, former President Robert Mugabe threatened the ZHRC officials and rubbished its investigative report which revealed that people in rural areas were given food aid on a political party basis.[7] Such contemptuous behaviour by the head of the executive and senior government officials impairs the spirit and tenor of constitutionalism and respect for human rights. Politicians should be cognisant of the fact that NHRIs are not just mere institutions, but creatures of the constitution that ought to be respected.

 Financial constraints

Both NHRIs from the two jurisdictions face financial constraints which makes it difficult for them to effectively promote constitutionalism and human rights. In 2022, the SAHRC in its annual analysis trends report indicated that financial constraints were making it difficult for the Commission to deal with complaints and general constitutional mandates.[8] For example, in 2023 the SAHRC said they did not receive a budgetary increase despite a 7.5 % salary increment as agreed by the bargaining council and labour unions which had an unbudgeted additional cost implication of R3.9 million.[9] The commission further told parliament that its total budget was below R224 million and 69% of it was for personnel costs, leaving 30% to operations and 1% to its capital expenditure. In 2014 the ZHRC told the treasury that it required US$7.5 Million for the effective execution of its constitutional mandate, however only US$ 600,000 was released by the treasury.[10] This is a clear indication that financial problems place significant constraints on the ability of NHRIs to meet their constitutional obligations of promoting constitutionalism and respect for human rights.

Inaccessibility

Accessibility of NHRIs is important to the promotion of constitutionalism and protection of human rights.[11]   In 2022, SAHRC CEO Tseliso Thipanyane, said the Commission was not able to properly service 60 million[12] South Africans in all its nine provincial offices because it had only 1180 staff members making the accessibility of the Commission difficult, especially for those in rural areas. Similarly, accessibility to ZHRC is limited. For instance, despite having 10 provinces, the operations of the Commission are coordinated by only two provincial capitals.^[13] This means that a total population of more than 17 million is being serviced by two offices. An analysis of both Zimbabwe and South Africa on access clearly shows that it is difficult to meet the Paris Principle on accessibility, which subsequently impairs the promotion of constitutionalism and human rights.  

Financial autonomy

The Paris principle provides that financial autonomy is important for NHRIs to efficiently execute their constitutional mandate. The largest chunk of the SAHRC budget is provided by the state.[14] The SAHRC is accountable to the government meaning that the National Assembly will always subtly control the operations of the commission financially. One should be alive to the fact that he who pays the piper dictates the tune. Therefore a close introspection of such a financial matrix will mean that the political economy of the SAHRC is also influenced by the National Assembly, a scenario which blurs the distinction between an independent commission and a state institution. In Zimbabwe despite the constitutional guarantee of independence and autonomy of the ZHRC,[15] Section 322 of the Constitution of Zimbabwe provides that parliament must ensure that there is sufficient funding for all commissions so that they can perform their duties properly and efficiently.[16]  Although the majority of budgets are allocated by the executive, there is a need for proper constitutional safeguard measures for NHRIs to enjoy their financial independence so that they execute their constitutional mandates.  

Conclusion

National Human Rights Institutions should be insulated from interference to guarantee and ensure their effectiveness, credibility and their ability to execute their constitutional mandate in promoting and protecting human rights.

[1] CM Fombad Compendium of documents on National Human Rights Institutions in Eastern and Southern Africa (2019) 1.

[2] South African Human Rights Commission Act 40 of 2013 section 24.

[3] Constitution of Zimbabwe Amendment (No. 20) Act, 2013 section 3.

[4] T Thipanyane ‘Strengthening Constitutional Democracy: Progress and Challenges of the South African Human Rights Commission and Public Protector 2016 139 New York Law School Review 60.

[5] ‘Human Rights Commission Report Polarising & Without Evidence, Says Government’ Pindula News 25 January 2019 https://www.pindula.co.zw/2019/01/25/full-text-human-rights-commission-report-polarising-without-evidence-says-governme/ziyambi-statement-on-hrc-1/ (accessed on 3 October 2024).

[6] As above 145.

[7] F Share ‘President Rubbishes ZHRC lies’ The Herald (Harare) 10 September 2016https://www.herald.co.zw/president-rubbishes-zhrc-lies/ (accessed on 2 October 2024).

[8] https://www.sahrc.org.za/index.php/sahrc-media/news/item/3051-sahrc-says-financial-constraints-are-hampering-its-work (accessed on 2 October 2024).

[9] https://www.sahrc.org.za/index.php/sahrc-media/news/item/3607-sahrc-operations-constrained-due-to-limited-budget-parliament-told (accessed on 2 October 2024).

[10] C Munguma The role of the Zimbabwe Human Rights Commission in the promotion of fundamental rights

and freedoms (2019) 16.

[11] Fombad (n1) 16.

[12] https://www.sahrc.org.za/index.php/sahrc-media/news/item/3051-sahrc-says-financial-constraints-are-hampering-its-work (accessed on 2 October  2024).

[13] Q Nyathi ‘The Zimbabwe Human Rights Commission’ in CM Fombad (eds) Compendium of documents on National Human Rights Institutions in eastern and southern Africa (2019 in Fombad 826.

[14]  E Mukwati ‘The South African Human Rights Commission’ CM Fombad (eds) Compendium of documents on National Human Rights Institutions in eastern and southern Africa (2019) 671.

[15] Section 232(b) of the Constitution of Zimbabwe.

[16] Section 322 of the Constitution of Zimbabwe.

About the Author:

Zororai Nkomo is a human rights lawyer, journalist and social justice activist. He is a Candidate for Master of Laws in Human Rights and Democratisation in Africa (HRDA) with the Centre for Human Rights at the University of Pretoria