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Is the SA Human Rights Commission a toothless watchdog? Political editor Makhudu Sefara looks at whether the problem with the commission is structural or if commissioners are intimidated by the loud howls of the Jacob Zuma mob.

ANC Youth League president Julius Malema saw right through the South African Human Rights Commission (HRC). He knew it could hardly bite, and where it was expected to howl it would not outperform him and his mob.

Following his controversial statement on June 16 about the league being prepared not only to die but “to kill” for ANC president Jacob Zuma, a comment the HRC labelled as incitement to violence, he, in the end, neither apologised nor suffered any consequences for his utterances.

Cosatu secretary-general Zwelinzima Vavi, probably being of the same mind about the commission, jumped onto the Malema bandwagon. So far he, too, has gotten away with it.

Worse for the commission, Vavi’s statements came after the HRC had already said it found Malema’s statements a violation of the letter and spirit of the country’s Constitution.

From one perspective, Vavi’s repetition of a problematic statement was effectively a dare to the commission and meant to show that it was held in contempt. In short, the HRC is obsolete or, in ANC parlance, a lame duck.

Following the HRC’s back-pedalling on the Malema issue, questions are now being asked about whether anybody should actually pay any attention when it proclaims contraventions against human rights. Some have already suggested that the HRC will almost certainly allow Vavi to get away without an apology and will be powerless to do anything should he refuse to apologise – something he has already chosen not to do.

The two cases have created a credibility crisis for commission chairperson Jody Kollapen.

Kollapen confirms that the commission’s handling of the Malema case has resulted in increased criticism, but he remains steadfast in his defence of its decision to let Malema walk – even though many believe the HRC was charmed out of its charges against Malema by Winnie Madikizela-Mandela, whom Malema had brought to a meeting with the commission.

The question is, what could the commission really do to enforce its findings or force people like Malema and Vavi to apologise? Put differently, is the law governing the functioning of the commission too restrictive to allow commissioners to take action that could force many to heed its deadlines (take it seriously) and calls for apologies?

“If Vavi is let off the hook without a formal apology or serious consequences, it will confirm the public’s perceptions that the commission is a toothless body that cannot fulfil its mandate of entrenching and defending our constitutional democracy and that it is a waste of taxpayers’ money,” says Velaphi Ndlovu, the Inkatha Freedom Party’s (IFP’s) spokesperson on safety and security.

But is it toothless, or are commissioners too timid to act against loudmouths like Vavi and Malema?

Kollapen explains that the commission has real powers to subpoena people to appear before it, compel them to give evidence and write reports about transgressions. The shortcoming, however, is that it has no power to arrest or force anybody to comply with its findings.

“Our findings have the power of a recommendation (to courts),” notes Kollapen.

It does, however, have an option to institute litigation, like any other citizen, against people who violate human rights – backed by its army of investigators and legal experts.

But its limitation with respect to enforcement has, says Kollapen, been the subject of fierce debate even internationally.

“On one level, if it had power to enforce it would be more effective. On the other hand, people ask how the commission could be an investigator of human rights violations and a judge at the same time. It is a complex discussion,” he says.

Without an enforcement capacity, does this make the HRC toothless?

Ndlovu says such an impression would doubtless be created if the HRC does not act against Vavi.

“Using violent remarks for a particular political cause is a total violation of our country’s constitutional principles. It is in light of this that the IFP calls on the Human Rights Commission to act decisively against Vavi if he does not formally apologise and retract his statements,” he says. “If this does not happen, an impression will be created that the HRC either has become toothless or has missing teeth.”

“I disagree,” says Kollapen. He says the commission’s record is public. He lists the case of a woman being litigated against in the Equality Court after a domestic worker received an SMS from her employer saying “the black bitch is not coming to work today” – a message sent to the domestic worker by mistake.

Kollapen also notes how the HRC went to court and later settled with a Pretoria salon owner who had refused to cut black hair. The examples are many, he says.

However, a senior government official who declined to be named says there’s a pattern emerging of people seen to be close to the current ANC leadership showing disregard for government institutions, especially those that focus a spotlight on them.

“The Scorpions were first called names and later closed down. Now anybody who criticises them (ANC) gets labelled. The secretary-general (Gwede Mantashe)’s ‘counter-revolutionary’ statement (against the judiciary) is a case in point. After Malema was given a 14-day deadline to apologise, the HRC was called names. Will they be shut down too, like the Scorpions, as appears to be the pattern?”

Kollapen says the HRC does not respond to name-calling and it does not influence how they deal with cases. He points out that the term of office of the current commissioners ends in September next year and they have no option to be reappointed. “So we can’t act in a way that will endear us to certain people, especially in our last year. It would not be logical,” says Kollapen.

This may well be so, but Kollapen will for some time find it difficult to explain the commission’s inaction against Malema. Should Vavi also get off without an apology or serious sanction against him, the impression will be cemented in the minds of many that it is easier to deal with little white salon owners and employers of domestic workers than to confront black mob leaders.

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