Freedom in the World 2012 - South Africa

Status: Free
Freedom Rating: 2.0
Civil Liberties: 2
Political Rights: 2

Overview

The passage by the lower house of the controversial Protection of Information Bill in November 2011 underscored recent threats against media rights and freedom of information in South Africa. Laws and practices dealing with asylum seekers and illegal immigrants – including the renewed deportation of Zimbabwean immigrants – were toughened in 2011. A series of strikes by public-sector and other workers, along with a continued rise in protests over the scope and pace of service delivery, increased fiscal pressures on the ruling African National Congress. The year also saw a number of corruption scandals and legal actions involving high-ranking government officials.

In 1910, the Union of South Africa was created as a self-governing dominion of the British Empire. The Afrikaner-dominated National Party (NP) came to power in 1948 on a platform of institutionalized racial separation, or "apartheid," that was designed to maintain white minority rule. Facing growing British and regional pressure to end apartheid, South Africa declared formal independence in 1961 and withdrew from the Commonwealth. The NP went on to govern South Africa under the apartheid system for 33 years. Mounting domestic and international pressure prompted President F. W. de Klerk to legalize the antiapartheid African National Congress (ANC) and release ANC leader Nelson Mandela from prison in 1990. Between then and the first multiracial elections in 1994, almost all apartheid-related legislation was abolished, and an interim constitution was negotiated and enacted.

The ANC won the 1994 elections in a landslide, and Mandela was elected president. As required by the interim constitution, a national unity government was formed, including the ANC, the NP, and the Zulu-nationalist Inkatha Freedom Party (IFP). A Constitutional Assembly produced a permanent constitution, which was signed into law in 1996. The ANC claimed almost two-thirds of the vote in 1999 elections, and Thabo Mbeki, Mandela's successor as head of the ANC, won the presidency. In 2004, the ANC won an even greater victory, taking nearly 70 percent of the national vote and majorities in seven of nine provincial legislatures. Mbeki easily secured a second five-year term.

In late 2007, former deputy president Jacob Zuma defeated Mbeki in a heated battle for the ANC presidency, and Zuma's allies were elected to a majority of ANC executive positions; Mbeki had sacked Zuma in 2005 after he was implicated in the corruption trial of his financial adviser, Schabir Shaik. Relations between the ANC and Mbeki's government were strained throughout 2008, and in September – after a High Court judge set aside the remaining corruption charges against Zuma due to prosecutorial misconduct – the ANC's national executive committee forced Mbeki to resign as state president. The party nominated its deputy president, Kgalema Motlanthe, to serve as interim state president, and he was quickly confirmed by the National Assembly, the lower house of Parliament. After Mbeki's ouster, recently resigned defense minister Mosiuoa "Terror" Lekota quit the ANC and formed the opposition Congress of the People (COPE) party; he was joined by a series of ANC leaders, nearly all of them Mbeki allies.

Despite new competition from COPE, the ANC won another sweeping victory in the April 2009 elections, taking 65.9 percent of the national vote, 264 seats in the 400-seat National Assembly, and clear majorities in eight of nine provinces. The Democratic Alliance (DA) retained its status as the largest opposition party, winning 67 National Assembly seats and outright control of Western Cape Province. COPE won 30 seats, and the IFP took 18. Zuma was easily elected state president by the National Assembly the following month, winning 277 of the 400 votes.

May 2011 municipal elections – marked by relatively high voter turnout – saw the ANC win 62 percent of the vote and the DA win just under 24 percent, including outright control of Cape Town and 11 of 24 municipalities in the Western Cape. The ANC won the vast majority of municipalities in every other province. The IFP won just over 3.5 percent of the vote, and COPE took just over 2 percent.

In November 2011, the National Assembly passed the Protection of Information Bill, 229 votes to 107, despite vociferous protests from the private media sector, most opposition parties, and a raft of civil society organizations. The bill allows state agencies to classify a wide range of information on extremely vague bases – including "all matters relating to the advancement of the public good" and "the survival and security of the state" – as in the "national interest" and thus subject to significant restrictions on publication and disclosure. It mandates prison terms of 3 to 25 years for violations, and does not allow a "public interest" defense. The bill's debate and passage was met with frequent demonstrations in Cape Town, Durban, and Johannesburg. It still required approval by the National Council of Provinces (NCOP), the upper house, at year's end.

Some 5.5 million South Africans, about 11 percent of the population, are infected with HIV. A 2008 Harvard University study claimed that 330,000 people had died between 2000 and 2005 as a result of the Mbeki government's skepticism about the link between HIV and AIDS and resistance to supporting the use of antiretroviral drugs (ARVs). State-funded access to ARVs has since expanded greatly, and prices of the drugs have halved. In June 2011, 1.4 million South Africans were taking ARVs, 400,000 of whom had gained access in the previous 12 months. The government also appeared to have met its goal of testing 15 million people a year, while mother-to-child transmission fell to 3.5 percent in 2011.

Political Rights and Civil Liberties

South Africa is an electoral democracy. Elections for the 400-seat National Assembly are determined by party-list proportional representation, and the 90 members of the NCOP are selected by the provincial legislatures. The National Assembly elects the president to serve concurrently with its five-year term.

The ANC, which is part of a tripartite governing alliance with the Congress of South African Trade Unions (COSATU) and the South African Communist Party, dominates the political landscape. Factionalism within the ANC and COSATU, as well as tensions between the alliance partners, increased significantly in 2011, tied generally to the upcoming ANC elective conference in December 2012. In November, ANC Youth League President Julius Malema was suspended by the ANC for "sowing divisions and bringing the party into disrepute." The DA is the leading opposition party, followed by COPE and the IFP.

Several agencies are tasked with combating corruption, but enforcement is inadequate. Public servants regularly fail to declare their business interests as required by law, and the ANC has been criticized for charging fees to business leaders for access to top government officials. In several instances, the tender process for contracts associated with the 2010 World Cup was alleged to have been corrupt or nontransparent. In October 2011, Public Works Minister Gwen Mahlangu-Nkabinde and Cooperative Governance and Traditional Affairs Minister Sicelo Shiceka were replaced, and police chief Bheki Cele was suspended; all three had been implicated in corruption. Political motivations have tinged a number of government-sponsored corruption investigations. Following a Constitutional Court challenge calling for an independent inquiry into a 1990s "arms deal" scandal, the government in September reopened an official inquiry into the affair. Between 2005 and 2009, current president Jacob Zuma had been charged with corruption three times in connection with the scandal, but was cleared of those charges on procedural grounds. In October, the government released the long-awaited Donen report, detailing findings of corruption by top ANC and government officials – including potential Zuma rivals Tokyo Sexwale, the minister of human settlements, and Deputy President Kgalema Motlanthe – related to the UN oil-for-food program in Iraq in the 1990s. South Africa was ranked 64 out of 183 countries surveyed in Transparency International's 2011 Corruption Perceptions Index.

Freedoms of expression and the press are protected in the constitution and generally respected in practice. A number of private newspapers and magazines are sharply critical of powerful figures and institutions. Most South Africans receive the news via radio outlets, a majority of which are controlled by the South African Broadcasting Corporation (SABC). The SABC also dominates the television market, but two commercial stations are expanding their reach. Internet access is unrestricted and growing rapidly, though many South Africans cannot afford the service fee.

The government is highly sensitive to media criticism and has increasingly encroached on the editorial independence of the SABC. Government critics have been barred or restricted from SABC airwaves, while a number of documentaries and special programs produced by the broadcaster have been canceled due to political considerations. The make-up and financing of the SABC board have become increasingly politicized in recent years. The government has recently enacted and proposed a series of potentially restrictive laws. In November 2011, the Constitutional Court accepted a multiparty legal challenge to the 2009 Film and Publications Amendment Act, which requires any publisher not recognized by the press ombudsman – or any person who wishes to distribute, broadcast, or exhibit a film or game – to submit potentially pornographic or violence-inciting materials to a government board for approval. The law also allows for the banning of such materials, which are broadly defined. In June, the government announced a R1 million ($148,000), cabinet-approved advertising budget to be spent at newspapers that "assist the government in getting its message across"; the government's media advertising operations were also consolidated within the Ministry of Communication. In November, a Mail & Guardian report on alleged corrupt dealings by Zuma's spokesman Mac Maharaj was censored by legal order, with the newspaper and two reporters charged with illegally accessing documents.

In September, Malema was convicted of hate speech by a Johannesburg High Court for leading crowds in singing a song containing the lyrics "shoot the boer," which the court alleged promoted the killing of white farmers.

Freedom of religion and academic freedom are constitutionally guaranteed and actively protected by the government.

Freedoms of association and peaceful assembly are secured by the constitution. South Africa hosts a vibrant civil society. Nongovernmental organizations (NGOs) can register and operate freely, and lawmakers regularly accept input from NGOs on pending legislation. A recent trend of protests over the pace and extent of public-service delivery – including housing, electricity, and water – continued in 2011. In April, a man in Ficksburg in Free State was killed after police beat him during a violent service delivery protest; two officers were later charged with murder, and four with assault. In August, thousands of protesters opposed to an ANC disciplinary hearing for Malema clashed with police.

South Africans are free to form, join, and participate in independent trade unions. COSATU, the nation's largest trade union federation, claims about two million members. Strike activity is very common. In July 2011, a series of large strikes by workers in the metals, engineering, chemical, and energy sectors resulted in widespread petrol shortages for at least half the month. The National Union of Metalworkers SA workers won a 10 percent wage increase, while counterparts in the chemical, paper, and pulp industries won wage increases between 8.5 and 10 percent. Zuma and the ANC remain under heavy pressure by COSATU to raise workers' salaries, deliver better social services, and improve economic performance to help reduce the country's high levels of unemployment.

Judicial independence is guaranteed by the constitution, and the courts – particularly the Constitutional Court and the Supreme Court – operate with substantial autonomy. Nevertheless, judicial and prosecutorial independence has come under pressure in recent years amid the Zuma corruption cases, prompting several instances of both judicial and political misconduct. Zuma's September 2011 appointment of Judge Mogoeng Mogoeng as chief justice of the Constitutional Court was contentious. An ordained minister who has expressed controversial opinions on homosexuality and rape, Mogoeng's nomination was opposed by numerous legal advocacy groups, as well as by COSATU. Judicial staff and resource shortages undermine defendants' procedural rights, including the rights to a timely trial and state-funded legal counsel. While pretrial detainees wait an average of three months before trial, some wait up to two years. The lower courts have proven more susceptible to corruption than the higher panels, and there have been reports of violent intimidation of judges and magistrates.

In advance of the 2010 World Cup, the government set up a number of "dedicated courts" to deal with tournament-related cases. The courts were widely lauded for their efficiency, and the justice minister announced that some elements of the temporary system would remain intact, though details were pending at year's end. The government also hired and trained an additional 40,000 police officers, who remained on the job after the World Cup to bolster the undermanned police force.

Despite constitutional prohibitions and government countermeasures, there have been many reports of police torture and excessive force during arrest, interrogation, and detention. According to the Independent Complaints Directorate, there were 257 deaths in police custody between April 2010 and March 2011, 64 of which were linked to injuries sustained while in custody. The Judicial Inspectorate of Prisons investigates prisoners' assault allegations but has limited resources and capacity. Prisons often fail to meet international standards and feature overcrowding, inadequate health care, and abuse of inmates by staff or other prisoners; both HIV/AIDS and tuberculosis are problems. Recent inquiries have found that corruption, maladministration, and sexual violence are rife in the penal system. In August 2011, the country's first prison unit for mothers and their babies was opened near Cape Town.

South Africa has one of the highest violent-crime rates in the world. However, in 2011, rates of murder, attempted murder, and carjacking declined significantly, though rape and sexual assault rates increased. The Zuma administration has given the police more latitude to use force against criminals. Mostly due to police incapacity, vigilante activity is a problem.

The constitution prohibits discrimination based on a range of categories, including race, sexual orientation, and culture. State bodies such as the South African Human Rights Commission and the Office of the Public Prosecutor are empowered to investigate and prosecute cases of discrimination. Affirmative-action legislation has benefited previously disadvantaged groups (defined as "Africans," "Coloureds," "Asians," and as of 2008, "Chinese") in public and private employment as well as in education. Racial imbalances in the workforce persist, and a majority of the country's business assets remain white-owned. The government's Black Economic Empowerment program aims to increase the black stake in the economy, mostly by establishing race-based ownership thresholds for government tenders and licenses.

Increased illegal immigration, particularly from Zimbabwe and Mozambique, has been met by a rise in xenophobic violence by police and vigilantes, and sporadic attacks have continued. In May 2011, residents in two Port Elizabeth townships attacked scores of Somali-owned shops, causing about 200 Somali immigrants to flee the area. In July, the African Peer Review Mechanism gave South Africa the lowest possible rating for its handling of xenophobia in the country.

The number of foreign nationals in South Africa is contested, with estimates ranging from two to seven million, including between one and three million Zimbabweans. In general, South Africa receives the largest number of asylum applications in the world; according to the Office of the UN High Commissioner for Refugees, over 400,000 were present in the country by year's end 2011, mostly from Zimbabwe. In March 2011, Parliament passed the Immigration Amendment Bill, which reduces the period asylum seekers have to make a formal application at refuge reception centers after entering the country from 14 days to 5 days, along with other restrictions. In October, the government resumed deportations of Zimbabwean migrants, halted in 2009. According to the International Organization of Migration, only 275,000 of an estimated 1.5 million Zimbabweans had applied to have their status regularized through the government's Zimbabwe Documentation Process, which ended in July 2011. Only half of the applicants received permits to remain in South Africa.

Separately, the nomadic Khoikhoi and Khomani San peoples, indigenous to South Africa, suffer from social and legal discrimination.

South Africa has one of the world's most liberal legal environments for homosexuals. The 2006 Civil Unions Act legalized same-sex marriage, and a 2002 Constitutional Court ruling held that homosexual couples should be allowed to adopt children. Nevertheless, societal bias remains strong. Homosexuals are routinely subject to physical attacks, including an increase in instances of so-called "corrective rape," whereby lesbians are raped by men seeking to change their sexual orientation.

The state generally protects citizens from arbitrary deprivation of their property. However, some 80 percent of farmland is owned by white South Africans, who make up 14 percent of the population. As a result, thousands of black and colored farmworkers suffer from insecure tenure rights; illegal squatting on white-owned farms is a serious problem, as are attacks on white owners. The government has vowed to transfer 30 percent of land to black owners by 2014; however, only about 6 percent of land had been transferred by the end of 2011, and about 90 percent of the redistributed farms had failed or were failing, according to the Ministry for Land Reform and Rural Development.

Equal rights for women are guaranteed by the constitution and promoted by the Commission on Gender Equality. While the constitution allows the option and practice of customary law, it does not allow such law to supersede women's rights as South African citizens. Nevertheless, women suffer de facto discrimination with regard to marriage (including forced marriage), divorce, inheritance, and property rights, particularly in rural areas. Despite a robust legal framework, domestic violence and rape, both criminal offenses, are extremely grave problems. South Africa has one of the world's highest rates of sexual abuse, which increased further in 2011. More than 56,000 women reported having been raped from March 2010 to March 2011, with many more cases likely unreported. Women are also subject to sexual harassment and wage discrimination in the workplace, and are not well represented in top management positions. Women are better represented in government, holding 45 percent of the seats in the National Assembly and leading five of nine provincial governments. The main opposition DA party is led by Helen Zille, the premier of Western Cape Province.