Amnesty International Report 2009 - South Africa

Head of state and government: Kgalema Motlanthe (replaced Thabo Mbeki in September)
Death penalty: abolitionist for all crimes
Population: 48.8 million
Life expectancy: 50.8 years
Under-5 mortality (m/f): 71/60 per 1,000
Adult literacy: 82.4 per cent

The rights of refugees, asylum-seekers and migrants were violated on a large scale. Inadequate training of police and health care providers undermined efforts to address persistently high rates of violence against women. Barriers to non-discriminatory access to health services continued to affect the majority of people living with HIV for most of the year. Torture and other ill-treatment by police, prison warders and private security guards continued to be reported and sometimes led to the deaths of detainees.

In an increasingly volatile political environment, the judiciary, and human rights bodies and defenders came under attack from national political figures. These tensions were also evident in the political responses to local campaigns to address deepening poverty and inequality, the shortage of adequate housing, threatened large-scale evictions arising from mining or development schemes, and the crisis over land claims.

Background

In September the National Executive Committee of the African National Congress (ANC) "recalled" Thabo Mbeki, leading to his resignation as President. ANC deputy president Kgalema Motlanthe became President following a parliamentary vote and appointed a new cabinet.

Earlier in September the Pietermaritzburg High Court had declared invalid the decision of the National Prosecuting Authority in late 2007 to institute fresh corruption charges against ANC president Jacob Zuma. The court did not rule on the merits of the prosecution case, but concluded that there had been a pattern of "political interference, pressure or influence" in the prosecution of this case. The Supreme Court of Appeal heard an appeal against the High Court decision in November, but had not issued its judgment by the end of the year.

These developments led to a major split within the ANC and the formation of a new political party, the Congress of the People (COPE), ahead of national elections in 2009. Incidents of violence, intimidation and threats were reported involving members of the ANC and COPE at public meetings and during municipal by-elections held in December.

In November a commission of inquiry, appointed by President Mbeki, to examine whether the National Director of Public Prosecutions, Vusi Pikoli, was fit to hold office reported to President Motlanthe. Vusi Pikoli had been suspended in 2007 by President Mbeki after obtaining a warrant to arrest the national commissioner of police on corruption charges. Although the commission's report concluded that the grounds for his suspension were without substance and that he should be restored to office, in December President Motlanthe decided to dismiss him and referred the decision to parliament for final confirmation.

Refugees, asylum-seekers and migrants

In May more than 60 people were killed and over 600 injured in violent attacks against individuals, targeted because of their perceived nationality, ethnicity or migrant status. Tens of thousands of people were displaced from their homes and communities, particularly in areas in and around Johannesburg and Cape Town.

Preliminary inquiries highlighted contributing factors, including xenophobic sentiments, competition over jobs, housing and social services, and the impact of corruption. Official inquiries failed to clarify the role of criminality or of organized politically motivated elements behind the violence, or to assess fully the role and capacity of the police in response to it. In December the Consortium for Refugees and Migrants in South Africa issued an appeal to the South African Human Rights Commission to lead an investigation into the violence, expressing concern at government failure to bring to justice those responsible for the May attacks.

Government authorities, with the support of civil society organizations and humanitarian agencies, established "safety sites" for the internally displaced (IDPs). However, from July onwards, the authorities' response increasingly included actions contrary to their human rights obligations towards the displaced. Among other things, access to the sites by humanitarian, legal and other support organizations was sometimes obstructed; accelerated asylum procedures were implemented at the sites without sufficient procedural safeguards, resulting in rejection rates of over 95 per cent; and criminal charges, unlawful detention and threats of deportation were used against individuals who failed to co-operate with administrative procedures. Legal access to IDPs removed to the Lindela deportation facility was sometimes denied and breaches of the prohibition against refoulement occurred.

Essential services at the sites were reduced before conditions for safe and sustainable return to local communities were widely present. At the same time repatriation for people who fled conflict zones was not possible, and resettlement options were not available. While re-integration locally was successful in some areas, there were continuing sporadic incidents of theft, assaults, rape and murder against IDPs using humanitarian assistance funds to re-integrate.

The political and humanitarian crisis in Zimbabwe led to the flight of thousands of Zimbabweans to South Africa, with 46,000 asylum applications between July and September alone. Towards the end of the year the Department of Home Affairs acknowledged that using the asylum system to screen out and deport economic migrants failed to address the crisis.

Violence against women and girls

High levels of violence against women continued to be reported.

According to police statistics, in the year ending March 2008, reported incidents of rape declined by 8.8 per cent. In June the Minister for Safety and Security told parliament that reporting figures underestimated the actual extent of crimes as many were not reported due to stigma and pressure from perpetrators. In the nine months prior to March 2008 there were 20,282 reported rapes of women, 16,068 reported rapes of children under 18, and 6,127 reported cases of indecent assault. The police reported a conviction rate of around 8 per cent for rape cases brought to the courts during this period.

From May, regulations under the new "Sexual Offences Act" began to be implemented, but there were gaps in training for police and health workers. Despite the regulations, some health care providers and police risked the health of rape survivors by insisting that they first lodge a criminal complaint before they could have access to emergency treatment including post-exposure prophylaxis (PEP) to reduce the risk of HIV transmission.

In August the Acting Commissioner of Police reported to Parliament that between July and December 2007 police recorded 50,497 incidents of domestic violence. Only a quarter led to criminal cases, because victims were reluctant to pursue charges because they were economically dependent on the perpetrators.

Women's access to legal remedies and protection continued to be restricted by lack of political commitment, insufficient budget and inadequate training of the police and provincial social services officials, and poor referral systems. Police informed Amnesty International in July that the heads of police stations in three provinces had been retrained, along with new recruits. However, in August the Acting National Commissioner of Police stated that the few trained officers were being undermined by other, untrained staff. The Independent Complaints Directorate (ICD) reported that many police stations were still failing to keep proper records as required under the Domestic Violence Act, and sometimes failed to assist women to open a case or to execute arrest warrants.

The number of domestic violence shelters rose from 39 in the early 2000s to nearly 100 in July 2008, according to national Department of Social Development officials. In August the National Shelter Movement was launched to address gaps in services for survivors. Severe problems remained, particularly for rural women with children.

In October a Court ruled as "arbitrary and illegitimate" the effective dismissal in 2001 by the Mpumalanga health department of a doctor involved in the provision of PEP to rape survivors.

Support organizations continued to report poor and prejudiced police response to cases of rape of lesbian women. In December South Africa did not sign the UN General Assembly statement on human rights, sexual orientation and sexual identity.

Right to health – people living with HIV and AIDS

An estimated 5.7 million people were living with HIV. In July the national Department of Health stated that 500,000 AIDS patients were receiving antiretroviral treatment (ART) at 409 accredited facilities. The numbers on ART had risen to 550,000, according to the new Minister of Health in October. There remained a wide treatment gap however. In June the government's progress report to the UN General Assembly Special Session on HIV and AIDS acknowledged that 58 per cent of those clinically needing ART were not receiving it. Severe staffing shortages in the public sector, disruptions in supply of the drugs, slow progress in decentralizing services for poor, rural communities, gender-based discrimination and poor political leadership contributed to this treatment gap. Some provinces, though, such as KwaZulu-Natal (KZN) and the Free State, increased the number of decentralized facilities accessible to patients unable to afford transport costs.

In February, after a long delay, the national Department of Health issued revised guidelines on the use of dual therapy for the prevention of mother-to-child transmission of HIV (PMTCT). The provision of PMTCT treatment to HIV-positive pregnant women ranged from just over half in the Eastern Cape to 99 per cent in Western Cape province, where dual therapy had been offered since 2004 and transmission rates reduced to three per cent. Also in February a hospital doctor in KZN was subjected to disciplinary proceedings for having implemented dual therapy before its official rollout.

In July, the Director General of the Department of Health publicly criticized the Deputy Chairperson of the South African National AIDS Council, a representative of civil society, for advocating a rights-based approach to the growing crisis of tuberculosis (TB) and HIV co-infection and the emergence of multiple drug-resistant (MDR) forms of TB.

Civil society organizations campaigned for improved access to support grants for people living in poverty with HIV and TB, including MDR TB patients isolated in specialized facilities. In August the Ministry of Social Development announced increases to social assistance grants. The Department of Transport also began to implement a rural public transport strategy to improve access to health services.

From October, a revitalised national political leadership of the AIDS response and greater co-operation with civil society under the new Minister of Health also began to have an impact on some of the barriers to the right to health.

Torture and other ill-treatment

Torture and other ill-treatment by police, prison warders and private security guards continued to be reported and sometimes led to the deaths of detainees. Corroborated cases included the use of electric shock and suffocation torture and prolonged assaults with batons, fists and booted feet. In several cases police interrogators and prison warders attempted to conceal evidence relating to the cause of death. Crime suspects, injured by anti-crime vigilante groups, were sometimes denied emergency medical care while held in police custody, leading in one case, in December, to the death of a detainee.

• S.N., a co-accused in a theft case, was assaulted by police in October when he went to report to the police station, as required under his bail conditions. He was pushed against a wall, punched, slapped and stamped on, while handcuffed and in leg-irons. He was threatened with being shot if he lodged a complaint. A medical examination revealed injuries consistent with his allegations.

• Three Zimbabwean asylum-seekers were ill-treated by police officers in an immigration detention facility in Musina. They were handcuffed and forced to roll in urine while being assaulted with hosepipes and kicked. They were charged with malicious damage to property when they sought redress.

The ICD reported that between April 2007 and March 2008, it received 20 complaints of torture and 739 complaints of assault with intent to cause grievous bodily harm. In the same 12-month period it received 302 new reports of deaths in custody and 490 suspects fatally shot by police during investigations, an 87 per cent increase over the previous year. Continuing weaknesses in resources and legal powers of the ICD were highlighted in parliament. An NGO study showed that police implemented only half of their recommendations.

• In April the Supreme Court of Appeal overturned two convictions and sentences for theft against Bongani Mthembu on the grounds that they were based on evidence extracted under torture from a witness.

In July the government made public a revised Combating of Torture Bill, following widespread criticism of the previous version in 2006, and concern expressed by a parliamentary committee in June at the government's lack of political will to implement treaty obligations. The new version, however, still had serious weaknesses, including a failure to make clear the absolute prohibition against torture.

Impunity

In December the Pretoria High Court ruled as unconstitutional, unlawful and invalid, the 2005 National Prosecution Policy on the prosecution of offences "emanating from conflicts of the past". The case had been brought by relatives of victims of extrajudicial executions and disappearances in the 1980s. The Court accepted that the policy would have the effect of allowing immunity against prosecution for individuals who had not co-operated with or had been denied amnesty by the Truth and Reconciliation Commission, even in circumstances where there was a well-founded case against them.

Amnesty International visits

Amnesty International delegates visited South Africa in March, June/July and August/September.

Amnesty International reports

• South Africa: "I am at the lowest end of all". Rural women living with HIV face human rights abuses in South Africa (18 March 2008)
• South Africa: Amnesty International calls on government to protect those at risk of "xenophobic" attack (23 May 2008)
• South Africa: Fear that closure of camps will result in human rights violations (14 August 2008)
• South Africa: "Talk for us please": Limited Options Facing Individuals Displaced by Xenophobic Violence (12 September 2008)
• South Africa: Survivors Still At Risk (10 November 2008)
• South Africa: No Transport, No Treatment (10 November 2008)
• South Africa: Nowhere To Shelter (10 November 2008)
• Oral statement on the outcome on South Africa under the Universal Periodic Review (11 June 2008)
• South Africa: Rural women the losers in HIV response (18 March 2008)
• South Africa: Displaced people should not be forcibly removed from temporary camps (23 July 2008)