Human Rights Watch Submission to the Universal Periodic Review of South Africa

Despite making commitments to act on recommendations from its second UPR cycle, South Africa has struggled to stop attacks on the businesses and homes of refugees, asylum-seekers, and migrants, denying that such attacks were motivated by xenophobia or other forms of intolerance. The government has also failed to realize the right to education for an estimated half-a-million children with disabilities.

Violence against women, including rape and domestic violence, remains very high. Although annual crime statistics for 2015 released by the South African Police Services showed that sexual offences decreased slightly by 3 percent, many gender activists and human rights groups expressed concerns about the continued under-reporting of rape and the failure of the government to introduced a national strategy to combat violence against women.

Rights of Children and People with Disabilities

The South African government has yet to fulfil its obligation to guarantee the right to education for many children and young adults with disabilities, affecting an estimated half-a-million children. Despite the government's international and domestic obligations, many children with disabilities do not have equal access to primary or secondary education and face multiple forms of discrimination and barriers when accessing schools. They are turned away from mainstream schools and referred to special schools by school officials or medical staff simply because they have a disability. The referrals system needlessly forces children to wait for up to four years at care centers or at home for placement in a special school. Children with disabilities who attend special schools pay school fees that children without disabilities do not, and many who attend mainstream schools are asked to pay for their own class assistants as a condition to stay in mainstream classes. Once in school, many children with disabilities do not have access to the same curriculum as children without disabilities. Many children are exposed to high levels of violence and abuse by teachers and students.

In 2001, the government adopted a national policy to provide inclusive education for all children with disabilities, but key aspects of the policy have not been implemented to-date. South Africa has not adopted legislation that guarantees the right to inclusive education for children with disabilities. The majority of the government's limited budget for learners with disabilities is allocated to special, segregated schools rather than to inclusive education.

South Africa became the first country to endorse the Safe Schools Declaration at a global conference in Norway in May 2015. By joining the Declaration, it agreed to protect students and education in times of conflict, and to avoid using educational building for military purposes.

Recommendations:

• Adopt new measures to guarantee quality inclusive education for all children, access to free and compulsory primary education and to secondary education, enforce people with disabilities' right to access adult education, and ensure adequate resources are invested in inclusive education.
• Implement the Guidelines on Protecting School from Military Use during Armed Conflict in its domestic military doctrine, practice and trainings.

Asylum seekers and foreign nationals

The situation of foreign nationals and asylum seekers in South Africa is precarious and remains an area of serious concern.

In April 2015, thousands of people looted foreign-owned shops and attacked non-South African nationals in Durban, KwaZulu-Natal province. The targets of the widespread violence were immigrants of African origin, mostly from Zimbabwe, Nigeria, the Democratic Republic, Mozambique, Malawi, and Somalia. Although the police arrested at least 22 people following the violence, the authorities neither thoroughly investigated nor successfully prosecuted those involved. No one was held to account for the attacks. Authorities also failed to prosecute those who had incited the violence against foreign nationals.

Government officials denied the violence was motivated by xenophobia or other forms of intolerance and said it was a result of "pure acts of criminality." The secretary general of the African National Congress (ANC) Gwede Mantashe told the media in April 2015 that he believed the solution to xenophobia is the establishment of refugee camps. Xenophobic violence in 2008 led to the deaths of over 60 people across the country.

Recommendations:

• Ensure that asylum seekers, refugees, and foreign nationals are protected from xenophobic violence throughout South Africa.
• Ensure justice and accountability for xenophobic crimes.

Sexual orientation and gender identity

South Africa has a progressive constitution that prohibits discrimination on the basis of sexual orientation and protects the human rights of lesbian, gay, bisexual and transgender (LGBT) people. The Department of Justice and Constitutional Development has taken significant steps to improve coordination between government and civil society in combatting violence (including rape and murder) against lesbians and transgender men. Despite the country's progressive legislation on the rights of LGBT people, discrimination remains institutionalized in families, communities, and in the behaviour of some government officials, such as police, some health care workers, and educators.

Recommendations:

• Require the police services, in collecting data on physical and sexual violence, to disaggregate the data by motive to track incidents of homophobic and trans-phobic violence;
• Ensure the police and prosecution services have the requisite training to effectively identify crimes motivated by homo and trans phobia;

• Work with the National Prosecuting Authority to ensure that cases of sexual and physical violence against women and transgender persons come to trial in a timely manner, and that prosecutors prioritize cases involving sexual offences.